RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015862


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

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 Honorable Conditions be upgraded to honorable. 

2.  The applicant states only that he needs his discharge upgraded.

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 October 1974, the date of his discharge.  The application submitted in this case is dated 1 November 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.  On 2 May 1974, the applicant enlisted in the Army for 2 years.  He was assigned to the 5th Training Brigade, Fort Knox, Kentucky, for basic combat training.  

4.  On 25 May 1974, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to fall into formation.  The punishment included a forfeiture of $75.00 pay, and 14 days restriction and extra duty.

5.  On 19 July 1974, the applicant received NJP for being disrespectful in language toward a superior noncommissioned officer.  The punishment included a forfeiture of $100.00 pay ($50.00 suspended).

6.  On 8 August 1974, the applicant received NJP for willfully disobeying a lawful order to get on the truck. The punishment included a forfeiture of $76.00 pay, and 14 days restriction and extra duty.


7.  On 9 August 1974, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  

8.  On 9 August 1974, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.1.1.1.  At a mental status evaluation on 14 August 1974, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

9.  On 15 August 1974, the applicant consulted with counsel, and elected not to make a statement in his own behalf.

10.  On 7 October 1974, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  

11.  Accordingly, he was discharged with a General Discharge characterized as under honorable conditions on 18 October 1974.  He had completed 5 months and 17 days of creditable active service.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 October 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
17 October 1977.  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

__JLP___  __LDS__  _ELS____  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
AR20060015862
SUFFIX

RECON
 
DATE BOARDED
20070508 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19741018  
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.4900.0000
2.

3.

4.

5.

6.