RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060013898 


	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.


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	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 to an honorable discharge.

2.  The applicant states, in effect, that he served 4 long years in the Army of which 13 months was spent in Korea and 12 months in Vietnam.  He goes on to state that he returned with a heroin habit and his captain caught him with heroin at Fort Knox, Kentucky and told him he could go to jail or get out of the Army.  He also states that he got an undesirable discharge, was given no legal counseling and was given a plane ticket home. 

3.  The applicant provides no supporting documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 17 March 1970.  The application submitted in this case is dated 22 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 enlisted at Fort Hamilton, New York on 20 June 1966 for a period of 3 years.  He was transferred to Fort Dix, New Jersey to undergo his training.

4.  On 3 November 1966, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 31 October to 1 November 1966.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

5.  He completed his training and was transferred to Korea on 21 November 1966 for duty as an infantry indirect fire crewman.  He was subsequently assigned as a radio telephone operator (RTO). 

6.  On 21 January 1967, NJP was imposed against him for communicating a threat to injure his first sergeant.  His punishment consisted of a forfeiture of pay.

7.  On 1 March 1967, NJP was imposed against him for leaving his guard post without being properly relieved.  His punishment consisted of an oral reprimand, extra duty and restriction.

6.  He was advanced to the pay grade of E-3 on 4 July 1967 and on 30 June 1967 he reenlisted for a period of 6 years.  

7.  On 23 September 1967, NJP was imposed against him for being AWOL from 17 September to 18 September 1967.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and restriction.

8.  In October 1967, he was assigned the duties of a cook.  He was assigned to three different units while in Korea and he departed Korea on 20 December 1967 for assignment to Vietnam.

9.  He arrived in Vietnam on 14 January 1968 and was assigned as a gunner to an infantry company.  On 4 April 1968, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay.

10.  The applicant was assigned to five different units during his tour in Vietnam and he departed Vietnam on 6 December 1968 and was granted a compassionate reassignment to Fort Hamilton, New York for duty as a military policeman. 

11.  On 3 March 1969, NJP was imposed against him for being disrespectful in language towards a superior commissioned officer.  His punishment consisted of a reduction to the pay grade of E-1 and extra duty.

12.  His records show that he went AWOL from 19 September through 24 October 1969; however, the record is silent as to any punishment imposed for that offense.

13.  He was reassigned to Fort Knox, Kentucky on 12 December 1969 and on 11 January 1970, he went AWOL and remained absent until 15 January 1970.  The record is also silent as to any punishment imposed for that offense.

14.  On 25 January 1970, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of extra duty and restriction.

15.  The applicant underwent a psychiatric evaluation on 12 February 1970 and the examining psychiatrist determined that he was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He further opined that the applicant feels no more conviction to follow orders that are in conflict with his immediate desires.  His ability to think beyond the needs for immediate gratification are practically non-existent and he is a strongly manipulative, self-centered individual who does not seem to have the moral convictions deemed appropriate in a Soldier.  He was cleared for administrative separation.

16.  On 17 February 1970, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-212 for unfitness due to his habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.

17.  On 3 March 1970, after consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.  His counsel witnessed his option elections and indicated that the applicant personally made the choices elected after being advised of the rights available to him.

18.  The appropriate authority approved the recommendation for discharge on 12 March 1970 and directed that the applicant be furnished an Undesirable Discharge Certificate.  

19.  Accordingly, he was discharged under other than honorable conditions on 17 March 1970 under the provisions of Army Regulation 635-212 due to frequent involvement in incidents of a discreditable nature with civil/military authorities.  He had served 3 years, 7 months and 6 days of total active service and had 49 days of lost time due to AWOL.

20.  On 18 April 1973 the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.  He reapplied to the ADRB for an upgrade on 1 July 1981 and was granted a personal appearance before the ADRB Travel Panel in New York on 24 September 1982.  After reviewing the available evidence and hearing testimony from the applicant and his counsel, the ADRB again denied his request on 22 October 1982.

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents and lewd or indecent acts were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

22.  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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board; however they are also not sufficiently mitigating to warrant relief when compared to his misconduct and his otherwise undistinguished record of service.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 22 October 1982.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 21 October 1985.  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

__x___  ___x      __x ___  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.



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          CHAIRPERSON




INDEX

CASE ID
AR20060013898
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070515
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
1970/03/17
DISCHARGE AUTHORITY
AR635-212 . . . . .  
DISCHARGE REASON
UNFIT
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.5000
583/A51.00
2.

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4.

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