RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 March 2007
DOCKET NUMBER: AR20060012548
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. W. W. Osborn, Jr.
Analyst
The following members, a quorum, were present:
Mr. Lester Echols
Chairperson
Ms. Linda M. Barker
Member
Mr. Michael J. Flynn
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 the reason for his discharge be changed.
2. The applicant states, in effect, the narrative reason for separation, Misconduct: Frequent Incidents of a Discreditable Nature with Civil or Military Authorities, unjustly condemns him for accusations he has been cleared of and as a result he was given an honorable discharge.
3. The applicant provides no documents to substantiate his case.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 6 August 1981, the date of the Army Discharge Review Board (ADRB) decision to upgrade the discharge. The application submitted in this case is dated 7 June 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 applicants failure to timely file.
3. The applicant enlisted and entered active duty on 30 September 1970. He completed training as a medical corpsman and was stationed in Vietnam in May 1971. In January 1972 he was returned from Vietnam.
4. He accumulated four nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice for offenses of sleeping on guard duty, absence without leave, driving while intoxicated, disobedience and disrespect. On 25 May 1973, following a personal appearance with counsel before a board of officers the applicant was separated with an undesirable discharge due to frequent incidents of a discreditable nature with civil or military authorities.
5. On 6 August 1981 the ADRB considered the case. The ADRB found that during the board of officers hearing the commanding officer testified that he ordered the applicant to undergo a urine analysis that resulted in a positive finding. This evidence was exempt and should not have been introduced. By a unanimous vote, the ADRB concluded the discharge was proper. However, the characterization was inequitable as a result of the commanders testimony. The sustentative rule applied and mandated an Honorable Discharge." The ADRB panel voted unanimously to grant him an honorable discharge.
6. Army Regulation 635-200, sets the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. The discharge was recharacterized by the ADRB based on a technicality that precluded the consideration of the results of a compelled urinalysis in the characterization of a discharge.
2. That decision did not extend to the reason for the discharge which was and is appropriate. The applicant's behavior did show evidence of misconduct by committing frequent incidents of a discreditable nature with civil or military authorities.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 August 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
5 August 1984. 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
__LE ___ __MJF___ __LMB __ 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.
______________________
CHAIRPERSON
INDEX
CASE ID
AR20060012548
SUFFIX
RECON
DATE BOARDED
20070329
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19730525
DISCHARGE AUTHORITY
AR 635-200, CH 12 . . . . .
DISCHARGE REASON
BOARD DECISION
NC
REVIEW AUTHORITY
ISSUES 1.
A94.05
2.
3.
4.
5.
6.
ARMY | BCMR | CY2004 | 2004101950C070208
On 5 January 1962, the applicant's commander recommended that the applicant be separated from the service under the provisions of Army Regulation (AR) 635-208 and furnished an undesirable discharge. The appropriate authority, a major general, approved the recommendation for the applicant's discharge on 6 February 1962 and directed that he be furnished an Undesirable Discharge Certificate. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 13...
ARMY | BCMR | CY2005 | 20050001269C070206
Member The Board considered the following evidence: Exhibit A - Application for correction of military records. As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 6 December 1984. _________James C. Hise__________ CHAIRPERSON INDEX CASE ID AR20050001269 SUFFIX RECON YYYYMMDD DATE BOARDED 20050920 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19750305 DISCHARGE AUTHORITY AR 635-200, chapter 13-5a(1) DISCHARGE REASON BOARD...
ARMY | BCMR | CY2005 | 20050001269C070206
On 28 February 1975, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished an UD. Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 7 December 1981. As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 6 December 1984.
ARMY | BCMR | CY2005 | 20050004121C070206
He also contends that the failure to timely file is the result of his records being lost and his attempting to obtain copies of those records since 1975. On 30 September 1969, the applicant’s commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-212 for unfitness. 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...
ARMY | BCMR | CY2006 | 20060006485
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 February 2007 DOCKET NUMBER: AR20060006485 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. On 22 March 1966, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge. On 21 June 1977, the applicant's records were reviewed under the provisions of the SDRP wherein it...
ARMY | BCMR | CY2004 | 2004100468C070208
On 9 July 1975, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. However, the separation authority determined that there was no "agreement" and that the undesirable discharge was appropriate and correct.
ARMY | BCMR | CY2004 | 2004100742C070208
The Board considered the following evidence: Exhibit A - Application for correction of military records. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. The U.S. Court of Appeals, observing that applicants to the 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...
ARMY | BCMR | CY2012 | 20120019953
After hearing testimony from all parties concerned, to include the applicant who appeared with counsel, the board of officers determined the applicant should be discharged for unfitness due to his frequent involvements in incidents of a discreditable nature with civil and/or military authorities and recommended the issuance of an Undesirable Discharge Certificate. On 14 April 1980, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. When authorized, it is...
ARMY | BCMR | CY2006 | 20060006950C070205
On 20 June 1977, the Army Discharge Review Board (ADRB) denied the applicant’s request for an honorable discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The applicant’s record of service included a bar to reenlistment, one special court-martial conviction, and 128 days of lost time.
ARMY | BCMR | CY2006 | 20060003785C070205
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2006 DOCKET NUMBER: AR20060003785 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. On 5 July 1983, the Army Discharge Review Board (ADRB) denied the applicant’s request for a discharge upgrade. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army...