RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20060017514 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. LaVerne M. Douglas

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 his general discharge be upgraded to fully honorable.

2.  The applicant states, in effect, that his discharge was based on his indebtedness and his marital problems.  He states he has been divorced and has now been married to his current wife for 21 years.  He states, in effect, that he should be granted an honorable discharge for his service prior to his indebtedness.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 January 1976.  The application submitted in this case is dated 6 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 records show that he enlisted in the Regular Army on  
20 September 1968 for three years.  He completed basic combat training and advanced individual training, and was awarded the military occupational specialty 71H1O (Personnel Specialist).  

4.  His military service records show that he had two immediate reenlistments one in 5 June 1969 and the other in 20 June 1972.  He was issued DD Forms 214 showing his honorable service for both these periods of service.

5.  On 22 December 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty without authority, wrongfully appearing at Post Guard Mount in an unkempt and unclean uniform, failing to sign-in off leave, and for dereliction in his duty performance.

6.  On 14 January 1976, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty on 30 December 1975 and 2 January 1976 without authority.

7.  He was absent without leave (AWOL) during the periods 19-21 January 1976; 23-24 January 1976; and 26-28 January 1976.

8.  On 9 January 1976, he received notification that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations, Chapter 13 paragraph 13-5b (1-2-3) for unsuitability due to his demonstrated unwillingness to conformed to acceptable military standards, having instances of AWOL, the destruction of Government quarters, indebtedness of which were not resolved, and for having a continuous history of marital difficulties, which resulted in his inability to Soldier. 

9.  He was advised of the rights available to him and the effects of a discharge under honorable conditions.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf and his right to be represented by counsel at hearing.  The commander also explained the applicant's waiver privileges and the withdrawal of waiver privileges.  The applicant states that he would submit a statement in his own behalf under a separate cover.

10.  The applicant's military service records do not contain a written statement in his own behalf.

11.  His military service records show that he was formally counseled by his chain of command for his financial problems and job performance.

12.  On 16 January 1976, his commander recommended that he be discharged. On 22 January 1976, the recommendation for separation was approved by the appropriate authority.

13.  On 28 January 1976, the applicant was given a General Discharge Certificate for unsuitability, by reason of apathy, defective attitude or inability to expend effort constructively.  He had completed a total of 7 years, 7 months, and 19 days of active service and accrued 8 days time lost.

14.  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.

15.  Army Regulation 635-200 Personnel Separations, Chapter 13 applied to separation for unfitness and unsuitability.  At that time, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

16.  Army Regulation 635-200 Personnel Separation, paragraph 3-7a, 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.

17.  Army Regulation 635-200, paragraph 3-7b, 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 requests that his general discharge be upgraded.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for unsuitability.

3.  The applicant stated that his discharge was based on his indebtedness and his marital problems.  However, it was also due to his unwillingness to conform to acceptable military standards, his several periods of AWOL, and his destruction of Government quarters.

4.  The applicant believes that his general discharge should be upgraded based on his prior periods of honorable service.  This is not accepted.  The applicant was given DD Forms 214 for those periods of service which reflected his honorable service.

5.  Since the applicant has already been issued DD Forms 214 for his prior periods of honorable service, and his general discharge was based on behavior other than his marital difficulties and debts, there is no basis for granting his request.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 January 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
27 January 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

___lmd__  ___rmn__  ___eem__  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.




__________LaVerne M. Douglas____
          CHAIRPERSON




INDEX

CASE ID
AR20060017514
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070612
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.