RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060016254 


	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:


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 general discharge be upgraded to honorable.

2.  The applicant states that there is no error.  He says that he has never applied before and wants his general discharge upgraded.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 2 June 1976, the date of his discharge.  The application submitted in this case is dated 6 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 30 March 1973, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 95B1O (Military Policeman) and was subsequently assigned to the108th Military Police Company, Fort Bragg, North Carolina.

4.  On 20 December 1973, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for falling asleep while on guard duty.  The punishment included reduction to private, pay grade E1 (suspended), a forfeiture of $45.00 pay, and 14 days extra duty.

5.  On 24 April 1974, the applicant received NJP for driving over the speed limit (51 miles per hour in a 35 miles per hour zone).  The punishment included a forfeiture of $35.00 pay and 14 days extra duty.

6.  On 12 December 1974, the applicant was promoted to the rank of specialist four, pay grade E4.

7.  On 2 January 1975, the applicant reenlisted in the Regular Army for 4 years.  
8.  On 8 January 1975, the applicant received NJP for dereliction of duties.  The punishment included a forfeiture of $75.00 pay and 14 days extra duty and restriction.

9.  On 16 January 1976, the applicant received NJP for failing to go to his appointed place of duty.  The punishment included reduction to private first class, pay grade E3 and a forfeiture of $50.00 pay.

10.  On 28 April1976, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-37, for substandard performance, including his poor attitude, lack of motivation, and failure to demonstrate promotion potential.  

11.  On an undated document, the applicant indicated that he had consulted with counsel and elected not to make a statement in his own behalf.

12.  On an undated document, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. 

13.  Accordingly, he was discharged under honorable conditions on 2 June 1976. He had completed 3 years, 2 months and 3 days of creditable active service.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation provided authorization for separation for the convenience of the government.  Paragraph 5-37, in pertinent part, provided for a discharge based upon failure to demonstrate promotion potential.  A general discharge under honorable conditions was normally issued.

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.

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 2 June 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
1 June 1979.  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
AR20060016254
SUFFIX

RECON
 
DATE BOARDED
20070510
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION

REVIEW AUTHORITY

ISSUES         1.
144.0400
2.

3.

4.

5.

6.