RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 18 July 2007
DOCKET NUMBER: AR20070002141
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:
Mr. John N. Slone
Chairperson
Mr. David K. Haasenritter
Member
Mr. William Blakely
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, correction of his military records to show that he served with the United States Army from 1971 to 1973.
2. The applicant states, in effect, that he became aware of the error when he filed for disability.
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 26 April 1974, the date of his discharge. The application submitted in this case is dated 26 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 applicants failure to timely file.
3. On 14 December 1973, the applicant enlisted in the Regular Army for 2 years. His contract indicates that this is his first enlistment. He completed his basic combat training at Fort Knox, Kentucky, and was assigned for additional training at the United States Army Air Defense Artillery School, Fort Bliss, Texas. There is no evidence to show that he completed his training at Fort Bliss, Texas, or that he was awarded a military occupational specialty.
4. On 7 March 1974, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful possession of marijuana. The punishment included a forfeiture of $150.00 pay per month for 2 months and 30 days extra duty.
5. On 12 April 1974, the applicants commander recommended that he be discharged under the provisions of Department of the Army message, subject: Evaluation and Discharge of Enlisted Trainees Before 180 Active Duty Days, dated 1 August 1973. The commander stated in his recommendation that the applicant did not possess the attitude, desire, or aptitude to be successful in military service. Based on the applicants record of indiscipline and low aptitude test scores, the commander believed he would be a disciplinary problem throughout his military service and opined that he was not the modern professional Soldier that the United States Army needed.
6. On 16 April 1974, the applicant received NJP for wrongful possession of marijuana on 1 and 3 April 1974. The punishment included a forfeiture of $160.00 pay per month for 2 months and 45 days restriction and extra duty.
7. On 19 April 1974, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued an Honorable Discharge Certificate.
8. Accordingly, on 26 April 1974, the applicant was honorably discharged. He had completed 4 months and 13 days of creditable active service.
9. Item 18 (Record of Service) of the Applicants Report of Separation from Active Duty (DD Form 214) shows that he completed 4 months and 13 days of active duty and had no other active or inactive service. Both the authorizing officer and the applicant signed this DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. There is no available evidence of record to substantiate that the applicant served with the United States Army prior to 14 December 1973, or after 26 April 1974.
2. There is no evidence to show that the content of the applicants records is incomplete or in error.
3. In view of the above, the applicants request should not be granted.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 April 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
25 April 1977. 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
__DKH __ __JNS __ __WB __ 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.
_____John N. Slone _
CHAIRPERSON
INDEX
CASE ID
AR20070002141
SUFFIX
RECON
DATE BOARDED
20070718
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
110.000
2.
3.
4.
5.
6.
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