RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060015601 


	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:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell 

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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he served with a malfunctioning kidney.  The applicant continues that he was proud to have served in the Republic of Vietnam.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 June 1971, the date of his discharge.  The application submitted in this case is dated 24 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 record shows he enlisted in the Regular Army on 17 September 1969.  Records show that the highest rank he attained while serving on active duty was private first class/pay grade E-3.  

4.  The applicant’s records do not show any significant acts of valor during his military service.

5.  On 2 July 1970, the applicant was convicted by a Summary Court-Martial of on or about 0700 hours 24 June 1970, failure to go to his appointed place of duty; on or about 0700 hours 25 June 1970, failure to go to his appointed place of duty, and on or about 0700, failure to go to his appointed place of duty.

6.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 March 1971, for without proper authority absenting himself from his appointed place of duty. 
7.  On 10 November 1970, the applicant was convicted by a Summary Court-Martial of on or about 15 October 1970 until on or about 2 November 1970 for being absent without leave (AWOL).

8.  On 21 April 1971, charges were preferred against the applicant for on or about 19 April 1971, possession of 2 vials of a habit forming drug-heroin; on or about 19 April 1971, wrongful use of a habit forming drug-heroin; and on or about 19 April 1971, failure to obey a lawful order.

9.  On 20 April 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

11.  On 13 May 1971, the separation authority approved the applicant’s request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 3 June 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 1 year, 7 months, and 29 days of creditable active military service.

12.  On 28 January 1972 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.  On 12 April 1974, the ADRB reconsidered the applicant's petition to upgrade his discharge and granted his request.  The applicant discharged was changed to a general under honorable conditions discharge.

13.  The applicant was provided a new DD Form 214 (Report of Separation from Active Duty) which shows his character of service as under honorable conditions discharge.
14.  There is no evidence in the available records which show that the applicant was undergoing treatment for any type of kidney related medical issue at the time of his separation.

15.  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.

16.  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 contends his under honorable conditions discharge should be upgraded because of his malfunctioning kidney.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows that he was undergoing treatment for any type of kidney related medical issue at the time of his separation.  Additionally, there is no evidence that the applicant's medical issues were the cause of his acts of indiscipline.

3. The applicant's record of service shows he had 19 days of lost time due to AWOL and that he was convicted by two Summary Courts-Martial for being AWOL and failure to go to his prescribed place of duty.  Records further show that at the time of his original discharge under the provisions of chapter 10 of Army Regulation 635-200, the applicant admitted guilt to the charges of possession and use of heroin.

4.  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 also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 12 April 1974.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 11 April 1977.  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

_LMD____  _YM_ __  _GJP ___  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.




_Yolanda Maldonado____
          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.