RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 July 2007
	DOCKET NUMBER:  AR20070000313 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Jose Martinez

Member

Mr. William Crain

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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he was not guilty of the charge, that it was clear cut self-defense, that he has suffered long enough, and that he is a loyal United States citizen.  

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 May 1981.  The application submitted in this case is dated 23 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 enlisted on 17 March 1980 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).

4.  On 5 January 1981, nonjudicial punishment was imposed against the applicant for disobeying a lawful command.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and correctional custody.  

5.  Records show the applicant was placed in confinement on 19 March 1981 and released on 10 April 1981.

6.  On 30 April 1981, the applicant was convicted by a summary court-martial of failure to repair.  He was sentenced to forfeit $150 pay per month for 1 month.  On 30 April 1981, the convening authority approved the sentence.

7.  On 12 May 1981, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a forfeiture of pay. 
8.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 26 May 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year, 1 month, and 18 days of creditable active service with 22 days of lost time due to confinement.

9.  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.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14, paragraph 14-33b(1), provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally considered appropriate.  

11.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 26 May 1981; therefore, the time for the applicant to file a request for correction of any injustice expired on 25 May 1984.  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

JA_____  ___JM___  __WC____  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.



__James Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000313
SUFFIX

RECON

DATE BOARDED
20070712
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19810526
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.