RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060013996 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 be upgraded to under honorable conditions

2.  The applicant states, in effect, that at the time he was drafted, he was young, married with children, and made some poor decisions.  He further states that he is sorry and would like to clear his name. 

3.  The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), Undesirable Discharge Certificate, and letters of support from his sister and daughter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 5 March 1968.  The application submitted in this case is dated 
26 July 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.  On 9 February 1967, the applicant was inducted into the Army of the United States for 2 years.  He was 22 years of age.  He successfully completed his basic combat training at Fort Knox, Kentucky.

4.  On 15 April 1967, the applicant was assigned to Fort Lee, Virginia for advanced individual training as an engineer supply and parts specialist.  

5.  On 7 September 1967, the applicant was convicted by special court-martial of being absent without leave (AWOL) from 29 April to 14 August 1967.  His sentence consisted of confinement at hard labor for 3 months (suspended), and a forfeiture of $33.00 pay per month for 3 months.


6.  On 10 January 1968, the applicant was convicted by special court-martial of AWOL from 23 September to 15 December 1967.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of $33.00 pay per month for 6 months.  

7.  Certificate of Psychiatric Evaluation, dated 19 January 1968, indicates that the applicant stated he did not like the Army and threatened to go AWOL at the first opportunity.  It further indicates that the applicant had quit school in the ninth grade because he hated it; had eleven assault and battery charges and a petty larceny charge; smoked marijuana every chance he got; used barbiturates; and was not concerned if he received a dishonorable discharge.  The psychiatrist opined that the applicant's longstanding character and behavior disorder would tend to exist permanently and that he could not be rehabilitated to the extent that he could be an effective Soldier.  The psychiatrist recommended that the applicant be administratively separated under the provisions of Army Regulation 635-212, for unfitness.

8.  Special Court-Martial Order Number 516, Special Processing Battalion, Fort Riley, Kansas, dated 19 February 1968, remitted the unexecuted portion of the approved sentence to confinement at hard labor for 6 months and forfeiture of $33.00 pay per month for 6 months, effective the date of the applicant's discharge from the service.

9.  On 16 February 1968, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness.  The commander stated that the applicant had two periods of AWOL totaling 194 days and two special courts-martial.  

10.  On 16 February 1968,  the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.

11.  On 26 February 1968, the appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  On 
5 March 1968, the applicant was discharged accordingly.  He completed 
3 months and 11 days of creditable active service.

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

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for 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.  An Undesirable Discharge Certificate was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  There is no evidence of record, nor has the applicant provided sufficient evidence to support upgrade of his discharge. 

2.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. 

3.  The applicant's contention that he was young at the time of his induction is without merit.  He was 22 years of age at the time, making him older than most recruits.  Furthermore, he demonstrated the capacity to serve by his completion of basic training.

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 should have discovered the alleged error or injustice now under consideration on 5 March 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
4 March 1971.  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

__DKH __  __LMD__  __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
AR20060013996
SUFFIX

RECON
 
DATE BOARDED
20070320 
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19680305
DISCHARGE AUTHORITY
AR .635-212 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144-5000
2.

3.

4.

5.

6.