RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20070001271 


	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, in effect, that his undesirable discharge be upgraded to honorable.    

2.  The applicant states, in effect, that he wants an upgrade based on the time he spent in the service.

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 21 March 1973.  The application submitted in this case was received on 24 January 2007.

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 14 December 1971, the applicant enlisted in the Regular Army for 2 years. Three days later he extended this enlistment for one additional year for an assignment option to the 4th Infantry Division.  He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

4.  Records show that on 20 February 1972, the applicant was arrested by civilian authorities. There is no available evidence showing the specific charges. 

5.  On 24 February 1972, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 15 February to 21 February 1972.  The punishment included a forfeiture of $50 pay per month for 2 months and 30 days restriction and extra duty.


6.  Records show that the applicant was AWOL from 16 March to 10 September 1972 and again from 18 September 1972 to 16 February 1973 when he was apprehended by civilian authorities and returned to military control.

7.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 21 March 1973, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions.  He had completed 4 months and 2 days of creditable active duty and had 341 days of lost time due to AWOL and confinement.  

8.  On 9 March 1976, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  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.

10.  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.  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.

2.  The applicant's record is devoid of any redeeming service.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 9 March 1976.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 8 March 1979.  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

__ 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
AR20070001271
SUFFIX

RECON
 
DATE BOARDED
20070621 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19730321
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.