RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060012140 


	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.



	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 the Army Board for Correction of Military Records (ABCMR) affirm the upgrade of his discharge to under honorable conditions under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

2.  The applicant states, in effect, he lost his benefits from the Department of Veterans Affairs (DVA) because of the reason for his discharge.  The applicant further states he was not allowed to attend his own court-martial and he was not provided legal representation.

3.  The applicant states on his application that he was submitting copies of his medical and psychiatric records from White City, Oregon.  However, these records were not included with his application when received at the ABCMR.

4.  The applicant provides no additional documentation or evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 July 1970, the date of his discharge.  The application submitted in this case is dated 13 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's military records show he enlisted on 1 September 1967 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 74C (data analysis specialist).

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 30 January and 9 March 1968 for being absent from his appointed place of duty and being absent without leave (AWOL) during the periods from 6 to 12 February 1968 and from 23 February to 3 March 1968.

5.  On 11 June 1968, the applicant was convicted by a special court-martial (SPCM) for AWOL from 5 April to 22 May 1968.  His sentence consisted of reduction to private pay grade E-1, confinement for six months, and a forfeiture of $68.00 for six months.  The sentence was approved by the convening authority on 14 June 1968.

6.  On 14 February 1969, the applicant was convicted by a SPCM for being AWOL from 2 December 1968 to 22 January 1969.  His sentence consisted of confinement for six months and a forfeiture of $73.00 for six months.  The convening authority approved only that portion of the sentence that provides for confinement for six months and forfeiture of $65.00 for six months.

7.  On 3 July 1969, the applicant was convicted by a SPCM being AWOL from 
20 March to 14 June 1969.  His sentence consisted of hard labor for three months without confinement, a forfeiture of $73.00 for six months, and reduction to private pay grade E-1.  The sentence was approved by the convening authority on 3 July 1969.

8.  The applicant accepted NJP under Article 15, UCMJ, on 26 December 1969 for being absent from his appointed place of duty.

9.  On 25 April 1970, the applicant was assigned to Headquarters and Headquarters Company U.S. Army Inventory Control Center, Vietnam.

10.  The applicant accepted NJP under Article 15, UCMJ, on 2 June and 22 June 1970 for failure to obey a lawful regulation and for being disrespect towards a noncommissioned officer.

11.  On 25 June 1970, the applicant received a psychiatric evaluation from a psychiatrist, a major, at the 935th Medical Detachment, Vietnam.  

12.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  

13.  On 10 July 1970, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 
635-212 (Unfitness and Unsuitability) for unfitness with an undesirable discharge.
14.  The commander advised the applicant of his right to have his case considered by a board officers; to appear in person before a board officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.

15.  On 10 July 1970, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  

16.  The applicant also acknowledged that, as the result of issuance of an undesirable discharge under conditions other than honorable; he may be ineligible for many or all benefits as a veteran under both federal and state laws, and that he may expect to encounter substantial prejudice in civilian life.

17.  On 13 July 1970, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  The commander determined that discharge was appropriate due to the applicant’s habits and traits of character manifested by his repeated commission of petty offenses and habitual shirking.

18.  On 25 July 1970, the separation authority approved the recommendation for discharge for unfitness, waived further counseling and rehabilitation requirements, and directed that the applicant be discharged under the provisions of Army Regulation 635-212, by reason of unfitness.  The separation authority further directed that the applicant be furnished an Undesirable Discharge Certificate.

19.  On 30 July 1970, the applicant was discharged from active duty under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with military authorities and was issued an Undesirable Discharge Certificate.  He had completed 2 years, 2 months and 2 days of active service that was characterized as under other than honorable conditions.  He had 268 days time lost.

20.  On 4 April 1977, the Department of Defense directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DoD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

21.  On 3 August 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s undesirable discharge to a general discharge under honorable conditions effective 24 June 1977, under the provisions of the DOD-SDRP. 

22.  On 8 October 1978 Public Law 95-126 was enacted.  This legislation required that the Service Departments establish historically consistent uniform standards for discharge reviews.  Previous upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards. Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to Department of Veterans Affairs benefits, unless they had been entitled to such benefits before their SDRP review.

23.  On 17 July 1978, the ADRB, in response to Public Law 95-126, notified the applicant that his upgraded discharge was reviewed, but did not affirm the 
3 August 1977 upgrade.

24.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

25.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not allowed to attend his own court-martial or provided with legal representation.  However, the applicant did not indicate which of his three SPCMs he was referring to nor did he provide any documentation or evidence to support his contention.  Therefore, this contention was not considered in the determination of this case.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  In view of the applicant’s offenses, it does not appear that his undesirable discharge was too harsh.

3.  The applicant’s entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  The applicant’s acceptance of NJP on five occasions and three convictions by SPCM during his two years and two months of service does not show satisfactory military service of 24 months prior to his discharge.  

4.  The reason for discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the Department of Veterans Affairs (DVA).

6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, the applicant’s discharge issued under the SDRP is not affirmed.   

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 17 July 1978.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 16 July 1981.  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

____lmd_  ___dkh__  ___kan___  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.




_________Kathleen A. Newman______
          CHAIRPERSON




INDEX

CASE ID
AR20060012140
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.