RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060015602 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Patrick H. McGann Jr.

Member

Ms. Karmin S. Jenkins

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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he had a drinking problem and he got into a fight at the enlisted club at Fort Carson, Colorado.  He states that the fight was over a "drink and names."  Also, he has lived with this shame all these years.

3.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 11 November 1971.  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 applicant's military records show that he entered active duty on  
23 September 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty  
11D1O (Armor Reconnaissance Specialist).  The highest grade attained while on active duty was private/pay grade E-2.

4.  On 21 March 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 5 January to 18 March 1970.

5.  On 18 June 1970, the applicant accepted NJP under Article 15, UCMJ, for being AWOL from 12 April to 10 June 1970.

6.  On 19 October 1970, the applicant was tried by a special court-martial and, pursuant to his guilty pleas, was found guilty of one specification of Article 86 of the UCMJ for being AWOL from 18 June to 28 September 1970.

7.  On 20 May 1971, the applicant accepted NJP under Article 15, UCMJ, for being AWOL from 12 April to 6 May 1971.

8.  On 17 June 1971, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave AWOL from 14-16 June 1971.

9.  On 28 June 1971, the applicant accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty, to wit: Orderly Room, and morning work formation, a violation of Article 86.

10.  On 15 September 1971, the applicant received notification that he was being considered for separation under the provisions of Army Regulation 635-212, for unfitness based on his record of AWOLs.  The applicant waived consideration of his case to be heard by a board of officers, waived a personal appearance before a board of officers, submitted no statement on his own behalf, and waived representation by an appointed counsel.

11.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He further understood that, as the result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life.

12.  On 19 October 1971, his commander forwarded the recommendation for separation to the Commander of Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri.  

13.  On 22 October 1971, the major general in command of Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, approved the request and directed that the applicant be furnished an Undesirable Discharge Certificate.

14.  On 11 November 1971, the applicant was discharged under other than honorable conditions and was issued an Undesirable Discharge Certificate.  He had completed 1 year and 7 days of active service and accrued 406 days time lost.

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

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations), 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 (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.

18.  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 applicant requests an upgrade to his undesirable discharge.

2.  The applicant's drinking problem and the fight he got into at the enlisted club, Fort Carson, Colorado, has nothing to do with his undesirable discharge.  His discharge was based on unfitness due to excessive record of AWOLs.

3.  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.  His numerous acts of misconduct render his service unsatisfactory. 

4.  The applicant's discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an undesirable discharge for unfitness.  Therefore, he is not entitled to an honorable or a general discharge.

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

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 November 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
10 November 1974.  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

____klw__  ____phm_  ___ksj___  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.




__________Kenneth L. Wright_______
          CHAIRPERSON




INDEX

CASE ID
AR20060015602
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070510
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.