RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 June 2007
	DOCKET NUMBER:  AR20070002556 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. William F. Crain

Member

Mr. Dean A. Camarella

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 be upgraded.

2.  The applicant states that an injustice was served upon him and that he was approached by his Company Commander and his supporting Staff Judge Advocate to "sign his way out" of the Army while at Fort Benning, Georgia military prison on 3 November 1971.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 December 1971, the date of his discharge.  The application submitted in this case is dated 15 February 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.  The applicant's records show that he enlisted in the Regular Army on 29 August 1969.  Records further show that he completed basic combat and advanced individual training and awarded military occupation specialty (MOS) 11B (Infantryman).  Records show the highest rank the applicant attained while serving on active duty was private corporal/pay grade E-3.

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for: on 1 September 1971, being absent without leave (AWOL) during the period 1 September 1971 to 14 September 1971 and on 11 October 1971, for disobeying a lawful order.

6.  On 3 November 1971, the applicant was convicted by a Summary Court-Martial for disrespecting his commanding officer.  The resulting sentence was reduction to private/pay grade E-1, forfeiture of $127.00 for one month, and confinement at hard labor for 30 days.

8.  On 17 November 1971, the applicant's commanding officer initiated a request to the approval authority recommending the applicant's separation for reason of unfitness for military service.

9.  On 30 November 1971, the approval authority approved the discharge request and directed the applicant receive an Undesirable Discharge Certificate.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged and issued an Other than Honorable Conditions Discharge Certificate.  This form further shows that the applicant completed a total of          2 years, 2 months, and 1 day of creditable active military service with 47 days of lost time due to AWOL and confinement. 

11.  On 15 December 1972, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  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.

13.  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

14.  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.  The applicant contends that his under other than honorable discharge should be upgraded because it is unjust. 

2.  The applicant's records show that he was punished under the provisions of Article 15 of the UCMJ on two occasions and convicted by a Summary Court-Martial for disrespecting his commanding officer.  The applicant records also show that he had 47 days of lost time due to AWOL and confinement. 

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 15 December 1972.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 14 December 1975.  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

__JTM___  _DAC__  __WFC___  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 T. Meixell____
          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.