RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060016337 


	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

Mr. 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 general under honorable conditions. 

2.  The applicant states that he was given an undesirable discharge for being absent without leave (AWOL).  He further states that he was given 30 days in the stockade and was not given a court-martial.

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 September 1965, the date of his discharge.  The application submitted in this case is dated 14 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 29 May 1963, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 760.00 (Quartermaster).  Subsequently, his MOS became 76A1O (Supply Clerk).

4.  On 20 November 1963, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for 4 days AWOL.  The punishment included a forfeiture of $40.00 pay per month for 
2 months.

5.  On 15 January 1964, the applicant received NJP for being drunk in a public place and for behaving in a manner unbecoming a Soldier.  The punishment included a forfeiture of $20.00 and restriction in the company area until shipment overseas.

6.  On 18 May 1964, the applicant received NJP for being AWOL 4 hours.   The punishment included 14 days extra duty and restriction.

7.  On 14 November 1964, the applicant received NJP for willfully disobeying a lawful order from a noncommissioned officer; being disrespectful in language; and for being disorderly.   The punishment included a reduction to private, pay grade E2.

8.  On 25 June 1965, the applicant was convicted by special court-martial of AWOL from 25 March to 12 June 1965 (77 days).  His sentence consisted of reduction to private, pay grade E1, hard labor without confinement for 3 months and a forfeiture of $25.00 pay per month for 5 months.  

9.  On 12 August 1965, the applicant was convicted by summary court-martial of being AWOL; failing to go to his prescribed place of duty; and of breaking restriction.  His sentence consisted of a forfeiture of $50.00 pay and confinement at hard labor for 30 days.

10.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD 
Form 214) shows that he was administratively discharged on  27 September 1965, under the provisions of Army Regulation 635-208, for unfitness.  His service was characterized as under other than honorable conditions.  He had completed 2 years and 3 days of creditable active duty and had 120 days of lost time due to AWOL and confinement.

11.  On 22 September 1977, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

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 
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.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

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

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

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

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 22 September 1977.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 21 September 1980.  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

__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
AR20060016337
SUFFIX

RECON
 
DATE BOARDED
20070510 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.5000.0000
2.

3.

4.

5.

6.