RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070002872 


	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 T. Meixell

Chairperson

Mr. Robert J. Osborn II

Member

Mr. Michael J. Flynn

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 general discharge be upgraded to honorable.  

2.  The applicant states, in effect, that after serving for almost 3 years in the United States Army, his younger brother became very ill and passed away. The applicant took leave.  When he returned to his unit and discussed the situation with his commander he was offered an expeditious discharge, which he accepted.  Now, he would like to correct this black mark on his life.

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 20 June 1975, the date of his discharge.  The application submitted in this case is dated 8 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.  On 14 June 1972, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 13B1O (Field Artillery).

4.  On 13 March 1975, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to turn in a vehicle log book.  The punishment included a forfeiture of $50.00 pay per month for 1 month.

5.  On 15 May 1975, the applicant received NJP for being absent without leave (AWOL) from 21 April to 5 May 1975.  The punishment included a reduction to private first class, pay grade E3, forfeiture of $94.00 pay per month for 1 month, and 14 days extra duty.


6.  On 28 May 1975, the commander notified the applicant of his intent to separate him due to his apathetic and general attitude toward his duties and for AWOL.  The commander further stated that repeated counseling and efforts to guide him in the proper method of meeting his obligations failed to make any improvement.  The applicant acknowledged this notification and voluntarily consented to be discharged.  He elected not to submit a statement on his own behalf.  He further indicated that he understood that if he was issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life and acknowledged that he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps.  

7.  On 28 May 1975, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-37, for substandard performance, due to apathy and poor attitude. [This showed the applicant lacked motivation and failed to demonstrate promotion potential.]  

8.  On 29 May 1975, the appropriate authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate. 

9.  Accordingly, on 20 June 1975, he was discharged under honorable conditions. He had completed 2 years, 11 months and 22 days of creditable active service, and had 15 days of lost time due to AWOL.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation provided authorization for separation for the convenience of the government.  Paragraph 5-37, in pertinent part, provided for a discharge based upon failure to demonstrate promotion potential.  A general discharge under honorable conditions was normally issued.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 June 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
19 June 1978.  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

____MJF___  __RJO__  __JTM 

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
AR20070002872
SUFFIX

RECON

DATE BOARDED
20070719
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0400
2.

3.

4.

5.

6.