RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20070000056 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Sherri V. Ward

Chairperson

Mr. Richard T. Dunbar

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 that his general discharge be upgraded to honorable. 

2.  The applicant states, in effect, that his discharge was unjust and he has suffered periods of incarceration as a result of the Army’s misdiagnosis of his post traumatic stress disorder. 

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 23 May 1977, the date of his discharge.  The application submitted in this case is dated 18 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 18 July 1974, the applicant enlisted in the Florida Army National Guard and as a member of the United States Army Ready Reserve for 6 years.  He completed his initial training and was awarded military occupational specialty 76Y1O (Unit Supply Specialist).

4.  Special Orders 245, State of Florida, dated 10 December 1975, discharged the applicant, under honorable conditions from the Florida Army National Guard due to unsatisfactory participation and involuntarily ordered him to active duty.  

5.  On 6 January 1976, the applicant was enlisted in the Regular Army for a period of 18 months and 27 days.  He was assigned for duty as a supply specialist at Fort Knox, Kentucky.



6.  On 4 March 1976, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) on 17 February 1976 (1 day) and for being AWOL from 
20 February to 1 March 1976 (10 days).  The punishment included reduction to private, pay grade E1 (suspended), and 45 days extra duty.

7.  On 4 June 1976, the applicant received NJP for failing to go to his appointed place of duty.  The punishment included 14 days of extra duty and restriction.

8.  On 17 September 1976, the applicant was convicted by special court-martial of unlawfully possessing heroin, a controlled substance; and of unlawfully possessing of devices used to subcutaneously administer a controlled substance.  His sentence consisted of confinement at hard labor for 4 months and a forfeiture of $200.00 pay per month for 4 months.  He served 82 days in confinement.

9.  On 19 April 1977, the applicant received NJP for failing to report for guard duty and for being disrespectful in language towards a noncommissioned officer. The punishment included a forfeiture of $187.00 pay per month for 2 months (suspended) and 14 days of extra duty and restriction.

10.  On 11 May 1977, the commander notified the applicant of his intent to separate him due to his resentment to authority, inability to adapt to the military way of life, and habitual lateness for duty.  The applicant acknowledged this notification and voluntarily consented to be discharged.  He elected not to submit a statement in his own behalf.  He further indicated that he understood that if he was issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life and acknowledged that he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps.  

11.  On 12 May 1977, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-37, for substandard performance, including his poor attitude, lack of motivation, and failure to demonstrate promotion potential.  

12.  On 13 May 1977, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. 

13.  Accordingly, on 23 May 1977, he was discharged under honorable conditions.  He had completed 1 year, 1 month and 8 days of creditable active service, and had 99 days of lost time due to being AWOL and in confinement.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation provided authorization for separation for the convenience of the government.  Paragraph 5-37, in pertinent part, provided for a discharge based upon failure to demonstrate promotion potential.  A general discharge under honorable conditions was normally issued.

15.  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.

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 show that he suffered from post traumatic stress disorder, or that such suffering was a cause of any of his problems.  

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 May 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
22 May 1980.  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

__SVW__  __RTD __  __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.




_____Sherri V. Ward___
          CHAIRPERSON




INDEX

CASE ID
AR20070000056
SUFFIX
 
RECON
 
DATE BOARDED
20070621 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19770523
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0400
2.

3.

4.

5.

6.