RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070000749 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. William D. Powers 

Chairperson

Mr. William Blakley

Member

Mr. Donald L. Lewy

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 upgrade of his discharge.

2.  The applicant states that his discharge was unjust and that he should have received an honorable discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 January 1963, the date of his discharge.  The application submitted in this case is dated 26 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 he enlisted in the Army on 26 June 1961, for a period of three years.  He completed basic combat training.  The highest rank he attained while serving on active duty was private first class/pay grade E-3.  

4.  The record reveals a disciplinary history that includes his punishment by Summary Court Martial on two occasions for unclean clothing and equipment display and three specifications of missing reveille.  Records further show conviction by a Special Court Martial for sleeping on guard duty and disobeying a lawful order.

5.  On 13 November 1962, the unit commander recommended that the applicant be discharged from military service and furnished and Undesirable Discharge Certificate based on a clear pattern of offenses against military authorities which have warranted punishment in trial by court-martial.


6.  On 7 December 1962, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-208 (Personnel Separations) and that he receive a General Discharge Certificate.  On 7 January 1963, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time, confirms the applicant completed a total of 1 year, 5 months, and 7 days of creditable active military service.

7.  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.

8.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided for the separation of members who demonstrated undesirable habits and traits of character.  An undesirable discharge was normally considered appropriate for a pattern of misconduct warranting punishment by courts-martial.

9.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  Additionally, the applicant's commander recommended that he be given an undesirable discharge and after reviewing his entire service record, the approval authority granted the applicant an under honorable conditions discharge.

3.  The applicant's record of service included conviction by Summary Court Martial on two occasions for unclean clothing and equipment display and three specifications of missing reveille and conviction by a Special Court Martial for sleeping on guard duty and disobeying a lawful order.
4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 January 1963; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 January 1966.  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

_WDP__   _WB____  _DLL____  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.




_William D. Powers_
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.