RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012531 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Susan Powers

Member

Mr. Qawiy Sabree

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 that his undesirable discharge be upgraded. 

2.  The applicant states, in effect, that the undesirable discharge was unjust and a subjective decision by a general.  He contends that he received an undesirable discharge for striking an officer during a bar room fight and not while under fire.  He contends that the officer he struck was about to hit his friend with an iron bar. The officer came upon the fight and decided to break up the fight with the iron bar.  He had to hit him to stop him from hitting his friend.  He further states that the officer could not have the charge dropped against him, that the reason for his violent reaction toward the officer was he was suffering from Post Traumatic Syndrome (from his Vietnam experiences), and that the decision by the general was subjective because he would not take into consideration any of the circumstances.  He contends that he was young, impulsive, and proud and just wanted to get out.  Instead of waiting and standing trial he decided to resign with an undesirable discharge.  He further states that he wants his discharge upgraded to qualify for Department of Veterans Affairs (DVA) benefits. 

3.  The applicant provides 13 enclosures outlined in his statement, dated 
8 August 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 January 1972.  The application submitted in this case is dated 8 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 was born on 30 January 1952.  He enlisted on 17 February 1969 for a period of 3 years.  He successfully completing basic combat training and advanced individual training in military occupational specialty 51M (firefighter).

4.  On 22 August 1969, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.  

5.  The applicant served in Vietnam from 8 April 1970 through 16 March 1971.  

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, his  DD Form 214 (Report of Transfer or Discharge) shows that he was discharged with an undesirable discharge on 20 January 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 2 years, 11 months, and 4 days of creditable active service.

7.  In support of his claim, the applicant provided two character reference letters from two longtime friends.  They attest that the applicant is honest, mature, sincere, conscientious, and hard working.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that 
a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate. 

10.  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.  

11.  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.  Although the applicant was 17 years old when he enlisted, he successfully completed basic combat training and advanced individual training, and he served a tour in Vietnam prior to his misconduct.  Therefore, age is not a sufficiently mitigating factor.  

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 20 January 1972; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 January 1975.  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

JI______  __SP____  __QS____  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.


__John Infante________
          CHAIRPERSON




INDEX

CASE ID
AR20060012531
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720120
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.