RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 August 2007
	DOCKET NUMBER:  AR20070003389 


	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. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine R. Moya

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, an upgrade of his discharge. 

2.  The applicant states, in effect, that the data on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not coincide with the original data given to him upon his release from the Army in 1973.

3.  The applicant did not provide any documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, and has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army on 29 July 1968 for a period of 2 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 74C (Personnel Accounting Specialist).  He was honorably discharged on 20 July 1970.

3.  With prior service, the applicant reenlisted in the Regular Army on 18 May 1971.  The highest grade the applicant attained during his military service was specialist/pay grade E-4.

4.  The applicant's records show that he served in the Republic of Vietnam during the period 24 March 1969 through 21 July 1970.  However, his 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) as follows:
	a.  On 22 September 1971, for being absent without leave (AWOL) on or about 1 through 7 September 1971.  His punishment consisted of a forfeiture of $50 pay for 1 month, reduction to the grade of private first class/pay grade E-3 (suspended for 3 months).

	b.  On 6 January 1972, for disobeying a lawful order on 7 December 1971 and for being AWOL during the period on or about 8 December 1971 through
5 January 1972.  His punishment consisted of reduction to the grade of private first class/pay grade E-3, a forfeiture of $100 pay for 1 month, and 14 days of restriction to the company area. 

	c.  On 2 May 1972, for being absent on 1 May 1972.  His punishment consisted of a forfeiture of $30 pay for 1 month.

	d.  On 29 May 1972, for being AWOL during the period 25 through 26 May 1972.  His punishment consisted of a forfeiture of $35 pay for 1 month and reduction to the grade of private first class/pay grade E-3 (suspended for 60 days). 

	e.  On 3 June 1972, for being AWOL from 2 through 3 June 1973.  His punishment consisted of reduction to the grade of private/pay grade 
E-2.

6.  The applicant's records show that he underwent a medical examination on 5 October 1972 for the purpose of separation under Army Regulation 635-212.

7.  The applicant's record is void of a separation packet containing the facts and circumstances surrounding the applicant's separation processing.  The record does include a DD Form 214 the applicant was issued on 18 January 1973, the date of his separation.  This document shows he was separated under the provisions of Army Regulation 635-212 for unfitness.  This form further shows the applicant's character of service as "Under Conditions Other Than Honorable".  It also shows that at the time of his separation, the applicant had completed a total of 3 years, 8 months, and 13 days of creditably active military service, and that he had accrued 55 days of time lost due to being AWOL.  The applicant authenticated this document with his signature in item 32 (Signature of Person Being Separated) on the date of his separation.





8.  Headquarters, U.S. Army Personnel Center, Oakland, California, Special Orders 018 dated 18 January 1973 show that the applicant was discharged on 18 January 1973 in accordance with Army Regulation 635-212 for unfitness. 

9.  On 18 January 1973, the Army Discharge Review Board (ADRB) issued a memorandum to the applicant advising him of his right to have his "Undesirable Discharge" reviewed by the ADRB and the time frame needed to request such a review.  The applicant placed his signature on the memorandum acknowledging he fully understood that if he desired, he may request a review of his discharge by the ADRB.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

11.  Army Regulation 635-212 (Personnel Separations), in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant’s record shows he was separated for unfitness because of frequent incidents of a discreditable nature.  Although, the applicant's separation processing paperwork is not available for review with this case, it is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant’s extensive disciplinary history-nonjudicial punishment on five occasions-supports the fact that his discharge accurately reflects his overall record of service. 
4.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__cvm___  __ded___  __erm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




							Conrad V. Meyer
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003389
SUFFIX

RECON

DATE BOARDED
20070821
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19730118
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.