RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060017690 


	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 undesirable discharge be upgraded to honorable.  The applicant requests to personally appear before the Board. 

2.  The applicant states that he was told at the Veterans Affairs Center in the Brooklyn, New York, that he had received an administrative discharge from the United States Army.  He further states that he served in combat in the Republic of Vietnam and received the Purple Heart.  He has been walking with a cane for over 40 years and now wants his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) "properly graded".

3.  The applicant provides a copy of a letter from the Bronx Addition Treatment Center dated 6 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 2 November 1970, the date of his discharge.  The application submitted in this case was received on 21 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 9 May 1967, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

4.  In November 1967, the applicant was assigned to the Republic of Vietnam.  The following month he was wounded, received the Purple Heart and was medically evacuated to the Republic of Korea.  

5.  In May 1968, the applicant was assigned for duty as a rifleman at the Camp Carroll Army Depot in the Republic of Korea. 

6.  On 29 October 1968, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL).  The punishment included a forfeiture of $20.00 pay per month for 1 month.

7.  On 17 January 1969, the applicant received NJP for AWOL.  The punishment included reduction to private, pay grade E2, and a forfeiture of $45.00 pay per month for 2 months.

8.  On 4 December 1969, the applicant was convicted by summary court-martial of AWOL (three specifications).  His sentence consisted of a forfeiture of $70.00 pay per month for 1 month. 

9.  On 26 May 1969, the applicant was convicted by special court-martial of AWOL (two specifications).  His sentence consisted of a forfeiture of $106.00 pay per month for 3 months and 5 months confinement at hard labor. 

10.  On 16 April 1970, the applicant was convicted by special court-martial of AWOL.  His sentence consisted of a forfeiture of $100.00 pay per month for 
1 month and 4 months confinement at hard labor. 

11.  On 18 August 1970, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL (three specifications), for violation of Article 130, housebreaking, and for violation of Article 128, assault.  

12.  The discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 2 November 1970, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable. He had completed 2 years, 1 month and 18 days of creditable active duty and had 495 days of lost time due to AWOL and confinement.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 130, for housebreaking is a punitive discharge and confinement for 5 years.
15.  On 12 December 1980, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  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. The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not required.

2.  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.

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

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 12 December 1980.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 11 December 1983.  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

___JCR _  __DWT__  _RTW___  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
AR20060017690
SUFFIX

RECON
 
DATE BOARDED
20070524
TYPE OF DISCHARGE
  UOTHC
DATE OF DISCHARGE
19701102 
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.