RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012110 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Samuel Crumpler

Chairperson

Mr. Robert Rogers

Member

Mr. Patrick H. McGann Jr.

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded. 

2.  The applicant makes no additional statement. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 2 May 1966.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 May 1966.  The application submitted in this case is dated 14 August 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 24 July 1961 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  He was honorably released from active duty on 22 July 1964.  After a short break in service, the applicant enlisted on 9 July 1965.  

4.  On 8 January 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his unit.

5.  On 16 February 1966, the applicant accepted NJP under Article 15, UCMJ for not being at his appointed place of duty and for failing to obey a lawful order.

6.  On 22 February 1966, the applicant accepted NJP under Article 15, UCMJ for wrongfully appropriating a government vehicle.

7.  On 22 March 1966, the applicant was convicted, pursuant to his pleas, by a special court-martial of two specifications for failing to be at his appointed place 

of duty, for being absent without leave (AWOL) for the period 10 March 1966 through 27 April 1966, for failing to obey a lawful order, for breaking restriction, and for carelessly discharging an M-14 rifle.  His sentence consisted of a forfeiture of $88.00 pay per month for six months, confinement at hard labor for six months, and reduction to the rank of Private/E-1.

8.  The applicant's administrative separation packet is not available.

9.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was separated on 2 May 1966 under the provisions of Army Regulation 635-208 with a characterization of under other than honorable conditions.  The applicant completed 8 months and 6 days of creditable active service this term of enlistment with 48 days of lost time due to AWOL and confinement.

10.  Army Regulation 635-208 set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  At the time, an undesirable discharge was normally issued.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.  However, his 
records show that he received one special court-martial and three Article 15s.   
He had completed 8 months and 6 days of creditable active service his second enlistment before his separation with a total of 48 lost days due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 May 1966; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 May 1969.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SC ___  __RA ___  ___PHM_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations 
prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____ Samuel Crumpler___
          CHAIRPERSON




INDEX

CASE ID
AR20060012110
SUFFIX

RECON

DATE BOARDED
3 APRIL 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.7900.0000
2.

3.

4.

5.

6.