RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 May 2007
      DOCKET NUMBER:  AR20060016973


      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      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald J. Weaver              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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, in effect, to change his character of service
to a medical discharge.

2.  The applicant states, in effect, that he is asking for the medical
discharge promised to him when he was discharged from the active Army.

3.  The applicant did not provide any additional documentary evidence in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 February 1974, the date of his release from active
duty.  The application submitted in this case is dated 8 December 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 DD Form 214 shows he enlisted in the Regular Army on
9 November 1972.  He was not awarded a military occupational specialty
(MOS) and remained classified as a 09B (Trainee).  The highest grade held
was Private (E-2).

4.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.

5.  The record reveals 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), for damage to a 1970 Plymouth
Duster on
21 March 1973. The resultant sentence was a forfeiture of $50.00 pay and
restriction to the company area for 14 days.

6.  On 7 April 1973, the applicant accepted nonjudicial punishment (NJP)
for disobeying a lawful order.  His imposed punishment was a forfeiture of
$50.00 pay.

7.  On 20 August 1973, the applicant was convicted by a summary court-
martial of being absent without leave (AWOL) from 3 July 1973 and remaining
absent until 16 July 1973.  His sentence consisted of a reduction to
private/pay grade
E-1, hard labor without confinement for 30 days, and a forfeiture of
$200.00 pay for two months. 

8.  On 10 January 1974, the applicant accepted nonjudicial punishment (NJP)
for being AWOL from 5 January 1974 until 9 January 1974.  His imposed
punishment was a forfeiture of $25.00 pay.

9.  The facts and circumstances pertaining to the applicant’s discharge
proceedings are not in his Military Personnel Records Jacket (MPRJ).
However, the MPRJ does contain a separation document (DD Form 214) that
contains the authority and reason for the applicant’s separation.

10.  Section B (Physical Profile) of the applicant’s DA Form 3349 (Medical
Condition-Physical Profile Record) shows that the applicant was awarded a
“P3” (permanent) profile for recurrent dislocation of left shoulder on 5
June 1973.  Section C (Assignment Restrictions, or Geographical, or
Climatic Limitations) of the DA Form 3349, shows that the applicant was
restricted from prolonged handling of heavy weapons (excluding weapons). He
was also restricted from overhead work and no pull-ups or push-ups.

11.  The DD Form 214, he was issued confirms he completed a total of
1 year, 1 months, and 16 days of creditable active military service and
that he accrued 55 days of time lost due to AWOL.

12.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 5-year
statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the
requirements and procedures for administrative discharge of enlisted
personnel.  Chapter 13 of this regulation, in effect at the time, provides
for separation due to unsatisfactory



performance when in the commander’s judgment the individual will not become
a satisfactory Soldier; retention will have an adverse impact on military
discipline, good order and morale; the service member will be a disruptive
influence in the future; the basis for separation will continue or recur;
and/or the ability of the service member to perform effectively in the
future, including potential for advancement or leadership, is unlikely.
Service of Soldiers separated because of unsatisfactory performance under
this regulation will be characterized as honorable or under honorable
conditions.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7, 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’s contentions were carefully considered and found to be
insufficient in merit.

2.  The evidence of record shows that the applicant was convicted during a
summary courts-martial trial and received two nonjudical punishments.

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.  Further, the applicant failed to provide evidence that
his conduct since his discharge has been so meritorious as to warrant an
upgrade of his discharge as a matter of equity.  Therefore, he is not
entitled to an honorable or general discharge.



4.  There is not evidence that shows the applicant’s profile required him
to appear before a Medical Evaluation Board.  Therefore, he is not entitled
to have has records changed to a medical discharge.

5.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

6.  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.

7.  The applicant’s application for a review under the Special Discharge
Review Program was denied 19 February 1974.  The applicant had three years
from that date to apply to the ABCMR for relief.  Therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 18 February 1977.  The applicant did not file within the 3-year
statue of limitations and has not provided 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

___RJW _  ___JCR _  ___DWT_  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.




                                        _Ronald J. Weaver____
                                            CHAIRPERSON








                                    INDEX

|CASE ID                 |AR20060016973                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/24                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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