RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060017095 


	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. Jeffrey C. Redmann

Chairperson

Mr. Ronald J. Weaver

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, that his general discharge, under honorable conditions be upgraded to honorable.  He also asks for a medical discharge.
 
2.  The applicant states that he has been suffering from post traumatic stress disorder and is now disabled.  

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 June 1973, the date of his discharge.  The application submitted in this case is dated 2 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.  On 14 August 1972, he enlisted in the Regular Army for 2 years.  He successfully completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

4.  On 28 January 1973, the applicant was assigned for duty as an infantryman with the 1st Battalion, 4th Infantry Regiment, in the Federal Republic of Germany.

5.  During the month of February, 1973, the applicant was counseled on seven different occasions for being absent without leave (AWOL), poor duty performance, and his need to adjust to Army life.

6.  During the month of March 1973, the applicant was counseled three times regarding the consequences of AWOL.

7.  During the month of April 1973, the applicant was counseled three times regarding AWOL, general appearance, and duty performance.

8.  On 26 April 1973, a medical officer assigned with the 9th Medical Dispensary, wrote a statement saying that the applicant had been on sick call at least seven times since 27 February 1973 with fairly minor complaints.  The applicant expressed an apathetic and antagonistic attitude towards the military and stated he wanted out as soon as possible.  Because of this behavior, the doctor recommended that the applicant be administratively eliminated for the good of the service. 

9.  On 26 April 1973, 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.  

10.  On 3 May 1973, the applicant consulted with counsel, and elected not to make a statement in his own behalf.

11.  On 4 May 1973, the applicant was convicted by summary court-martial of AWOL (three specifications).  His sentence consisted of reduction to private, pay grade E1, and 30 days restriction.

12.  At a mental status evaluation 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 and capable of participating in the separation processing.

13.  On 25 May 1973, the appropriate authority approved the recommendation for separation and directed that he be issued a General Discharge Certificate.  

14.  Accordingly, he was discharged under honorable conditions on 6 June 1973.  He had completed 9 months and 23 days of creditable active service.

15.  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.

16.  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.  The applicant has not provided any evidence to warrant changing the reason for his discharge. 

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

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 June 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
5 June 1976.  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

__JCR __  __DWT__  __RJW __  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.




__Jeffrey C. Redmann____
          CHAIRPERSON




INDEX

CASE ID
AR20060017095
SUFFIX

RECON
 
DATE BOARDED
20070527
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19730606 
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.4900
2.

3.

4.

5.

6.