RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060014762 


	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. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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 general discharge (GD) be upgraded.

2.  The applicant states, in effect, that, since his discharge, he has worked for the same company for over 25 years and has become a respectable member of the community.  He is now disabled and wants to leave something nice for his children and to have them want to consider joining the military. 

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 June 1975, the date of his discharge.  The application submitted in this case is dated 12 October 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 records show the applicant entered active duty on 23 November 1973, completed training and was awarded the military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice as follows:

a.  on 13 February 1974, for being absent without leave (AWOL) from 4 February 1974 through 11 February 1974;

b.  on 10 June 1974, for the wrongful possession of marijuana and leaving his weapon unattended; and

c.  on 19 March 1975, for dereliction of duty.

5.  An 8 May 1975 memorandum prepared as a part of the applicant’s discharge processing indicates that the applicant had two additional NJPs for being AWOL. The NJP documentation for these offenses are not available at this time.   

6.  On 8 May 1975, his unit commander initiated separation under the provisions of Army Regulation 635-200, chapter 13 for unsuitability due to apathy.  Included in the reasons for separation were the above listed NJPs, two negative counseling statements, and the unit commander’s statement that since the applicant had joined the unit he had been a continual disruption and he failed to follow routine instructions.

7.  On 12 May 1975 the applicant acknowledged the separation action and after consulting with counsel waived his right to have a board officers consider his case, to make a statement on his own behalf, and to have counsel. 

8.  The discharge authority approved the discharge on 14 May 1975 and directed the applicant receive a general discharge.

9.  The applicant was discharged on 3 June 1975 with a GD.  He had 1 year, 6 months, and 1 day of creditable service with 11 days lost time and 28 days of excess leave.

10.  Army Regulation 635-200, (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 outlines the criteria for characterization of service.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(l), in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5." "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

11.  Army Regulation 635-200, chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 
DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The record indicates that the applicant displayed an apathetic attitude, as documented by his misconduct, that spanned his entire period of service and included several serious incidents.  Therefore, his service can not be shown to be sufficiently meritorious as to warrant an honorable discharge.

3.  The applicant’s statements about his post-service employment and his development of a sense of responsibility were noted; however, these activities are not so exceptionally meritorious as to outweigh the offenses that resulted in his discharge.

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 3 June 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 June 1978.  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

__ JRS __  ___LDS__  __CD___  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.




___Linda D. Simmons_____
          CHAIRPERSON


INDEX

CASE ID
AR20060014762
SUFFIX

RECON
 
DATE BOARDED
20070605 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19750603 
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
Deny
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.