RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20060015493 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. Thomas O. O'Shaughnessy, Jr.

Member

Mr. James R. Hastie

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 discharge characterized as under conditions other than honorable be upgraded to an honorable discharge.

2.  The applicant states he served in the Army and should receive benefits.  He further states that his discharge does not state "dishonorable."

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 March 1969, the date of his discharge.  The application submitted in this case is dated 23 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 records show he was inducted into the Army of the United States on 2 November 1967 for a two year term of service.  He completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 57A (Duty Soldier).  The highest rank he attained while serving on active duty was private/pay grade E-2.  

4.  On 17 February 1968, a summary court-martial convicted the applicant of being absent without leave (AWOL) from on or about 6 February 1968 through on or about 8 February 1968.  The resultant sentence included confinement at hard labor for 30 days and a forfeiture of $30.00 per month for one month.  

5.  On 26 September 1968, a special court-martial convicted the applicant of being AWOL from on or about 24 March 1968 through on or about 1 August 1968.  The resultant sentence included confinement at hard labor for 6 months and a forfeiture of $46.00 per month for 6 months.  

6.  On 26 February 1969, a special court-martial convicted the applicant of being AWOL from on or about 9 December 1968 through on or about 7 February 1969. The resultant sentence included confinement at hard labor for 6 months and a forfeiture of $23.00 per month for 3 months.  

7.  On 6 March 1969, the unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation
635-212 (Personnel Separations) by reason of unfitness.

8.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  

9.  On 20 March 1969, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate.  On 27 March 1969, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 5 months and 6 days of creditable active military service and that he accrued a total of 353 days of time lost.

10.  On 1 October 1976, the applicant was notified by the Army Discharge Review Board that his petition to upgrade his discharge was denied.

11.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  Army Regulation 635-200, paragraph 3-7, 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.



13.  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 three 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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

3.  The applicant's record of service included conviction by a summary court martial and two special courts-martial for being AWOL.  Records further show that the applicant only served 5 months and 6 days of creditable service with 353 days of lost time.  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.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for military benefits.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 1 October 1976.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 30 September 1979.  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:

_HOF____  _TOO__  __JRH___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




_Hubert O. Fry, Jr.___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.