RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060012254 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 (UD), characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states, in effect, that the decision on 17 December 1971 was based on a dishonorable discharge.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his undesirable discharge certificate, and a copy of his Standard Form 89 (Report of Medical History), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 August 1971, the date of his discharge.  The application submitted in this case is dated 17 August 2006 but was received for processing on 1 September 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 record shows he was inducted into the Army of the United States (AUS) on 24 April 1969.  The applicant successfully completed basic combat training and advanced individual training at Fort Polk, Louisiana. On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.

4.  On 25 July 1969, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 28 June 1969 to 20 July 1969.  His punishment consisted of a forfeiture of pay for two months.



5.  On 16 December 1969, the applicant was convicted by a special court-martial of being AWOL from 28 July 1969 to 3 November 1969 and from 7 November 1969 to 8 November 1969.  His sentence consisted of confinement at hard labor for 4 months and a forfeiture of pay for 4 months.

6.  The applicant was promoted to pay grade E-2 on 24 June 1970.

7.  On 27 July 1971, the applicant was convicted by a special court-martial of being AWOL from 30 September 1970 to 14 July 1971.  His sentence consisted of confinement at hard labor for 4 months and a forfeiture of pay for 4 months.

8.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL on several occasions and was confined.  He had accumulated 854 days of lost time.

9.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant submitted a copy of his DD Form 214 which shows that on 26 August 1971, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-212, for unfitness-established pattern of shirking.  He was furnished an undesirable discharge.  He had a total of 7 months and 24 days of creditable service and 854 days of lost time due to AWOL and confinement. 

10.  The applicant provided a copy of his SF 89 which shows that he had a history of mumps, sinusitis, and hernia, with no complications.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Item 11c (Reason and Authority), of the applicant's DD Form 214, shows the entry "386", which is his "SPN" (Separation Program Number).

13.  Table 1, Enlisted Separation Program Designator Chart, of Army Regulation 680-3-2, in effect at that time, establishes the proper SPN codes to assign to soldiers separating from the Army.  This table confirms that the SPN of "386" is the appropriate code for individuals discharged for unfitness – established pattern of shirking.



14.  The document the applicant alleges formed the decision made on 17 December 1971 that was based on an issue related to a dishonorable discharge is unavailable for review by the Board. 

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 


3.  It is apparent that the applicant’s discharge was based on his established pattern of shirking, which included nonjudicial punishment on one occasion, under Article 15, UCMJ, and two special courts-martial, for AWOL.  Therefore, there is insufficient basis to support his request for an upgrade of his UD.

4.  The Board noted that the applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service and the Board presumed Government regularity in the discharge process.  

5.  The applicant contends that a decision was made on 17 December 1971 based on a dishonorable discharge.  This document is unavailable for review.  It is noted that he was issued an UD, characterized as UOTHC, on 26 August 1971.  His records fail to reveal that any such decision was made after his discharge date.

6.  The evidence of record shows that the applicant accumulated a total of 854 days of lost time due to AWOL and confinement.  An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his UD.  

7.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

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

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 August 1974.  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

__rn____  __EM____  __WFC__  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.




___William F. Crain__________
          CHAIRPERSON




INDEX

CASE ID
AR20060012254
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19710826
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.