RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060015430 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

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 discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general, under honorable conditions discharge, or an honorable discharge.

2.  The applicant states, in effect, that ample time has passed since the incident as he continues to deny his guilt.  He adds that he is still pursuing legal procedures to vindicate his records and conviction.  However, it has been a strong struggle against his efforts but he continues to strive forward.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 25 April 1978, the date of his discharge.  The application submitted in this case is dated 10 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 applicant's military records show he entered active duty in the United States Marine Corps (USMC) on 30 June 1969.  He was trained as an auto mechanic in military occupational specialty (MOS), 3516.  He was promoted to corporal (CPL) on 1 February 1971.  He served until he was honorably released from active duty on 31 March 1971.  He had completed 1 year, 9 months, and 2 days of creditable service.  He was transferred to the USMC Reserve with a terminal reserve obligation date of 29 June 1975.

4.  The applicant enlisted in the Regular Army on 19 July 1974, in pay grade E-2. The applicant successfully completed basic combat training at Fort Polk, Louisiana, and advanced individual training at Redstone Arsenal, Alabama.  On completion of his advanced training, he was awarded the MOS 55B, Ammunition Storage Specialist.  
5.  On 22 November 1974, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty on 20 November 1974.  His punishment consisted of a forfeiture of pay. 

6.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record – Part II), shows that the applicant was confined on 1 December 1974.  Item 27 (Remarks), of his DA Form 2-1, indicates that he was arrested by civil authorities on 1 December 1974 in Huntsville, Alabama, while on an authorized pass, and was charged with rape and robbery.  

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant submitted a copy of his DD Form 214 which shows that on 25 April 1978, he was discharged in the pay grade of E-1, under the provisions of Army Regulation 635-206, for misconduct - due to a civil court conviction or adjudged a juvenile offender.  He was furnished an under other than honorable conditions discharge.  He had a total of 4 months and 12 days of creditable service and 1,225 days of lost time due to confinement.  

8.  The applicant was awarded an SPD (Separation Program Designator) of JKB, which identifies individuals who are discharged due to misconduct-conviction by civil court or adjudged to be a juvenile offender during the current period of active duty.

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

10.  AR 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel who had been convicted and sentenced by a domestic court of the United States or its territorial possessions.  Paragraph 37 of the regulation provided authorization, in pertinent part, for the convening authority to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the US or its territorial possessions.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

12.  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.  The evidence of record shows that the applicant served on active duty in the USMC from 30 June 1969 to 31 March 1971.  He completed 1 year, 9 months, and 2 days of creditable service and his character of service was considered honorable.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant's Personnel Qualification Record shows that while he was on an authorized pass he was arrested by civil authorities on 1 December 1974 in Huntsville, Alabama, and was charged with rape and robbery.  He was confined on the same day.

4.  The facts and circumstances pertaining to his discharge are unavailable for review. 

5.  It is apparent that the applicant's discharge was based on a civil court conviction or he was adjudged a juvenile offender which is unavailable for review. Therefore, there is insufficient basis to support his request for an upgrade of his UOTHC discharge.

6.  The Board noted that the applicant's record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service; therefore, Government regularity is presumed in the discharge process.  

7.  The applicant’s DD Form 214 shows that he accumulated a total of 1,225 days of lost time due to confinement.  An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his UOTHC discharge.  

8.  The applicant's statement was considered in the processing of this case.  However, it does not support an upgrade of his UOTHC discharge.  

9.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

10.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

11.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 April 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 April 1981.  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

__MJF__  ___RML__  ___RTD_  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.




___Richard T. Dunbar________
          CHAIRPERSON




INDEX

CASE ID
AR20060015430
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070503
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19780425
DISCHARGE AUTHORITY
AR 635-206//635-200, chapter 14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.