RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20070004405 


	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. Linda D. Simmons

Chairperson

Ms. Ernestine I. Fields 

Member

Mr. Randolph J. Fleming

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 discharge under other than honorable conditions be upgraded to honorable or to under honorable conditions. 

2.  The applicant states that he has grown up and regrets some of the actions of his youth.  He now wants to join the Army National Guard but first needs his discharge upgraded. 

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 16 July 1982, the date of his discharge.  The application submitted in this case is dated 2 March 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 22 August 1979, the applicant enlisted in the Regular Army for 3 years.   He completed his initial training and was awarded military occupational 64C1O (Motor Transport Operator).

4.  On 21 November 1979, the applicant was assigned for duty as a motor transport operator with the 6th Battalion, 14th Field Artillery Regiment in the Federal Republic of Germany.

5.  On 1 November 1981, the applicant attained the rank of specialist four, pay grade E4.

6.  On 30 December 1981, the applicant returned to the United States for duty with the 5th Engineer Battalion, Fort Leonard Wood, Missouri.


7.  On 17 February 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from about 15 to 18 January 1982.  The punishment included a forfeiture of $85.00 pay per month for 1 month (suspended), and 14 days restriction and extra duty.

8.  On 3 March 1982, the applicant accepted NJP for breaking restriction on or about 21 February 1982.  The punishment included reduction to private, pay grade E2; and 7 days in correctional custody.

9.  On 7 June 1982, the applicant accepted NJP for being AWOL from about 7 to 
13 May 1982; and again from about 15 to 25 May 1982. The punishment included reduction to private, pay grade E1; forfeiture of $250.00 pay per month for 2 months; and 30 days restriction to the installation.

10.  The discharge packet is missing from his military records.  However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was administratively discharged on 16 July 1982, under the provisions of Army Regulation 600-200, Chapter 14, due to frequent incidents of a discreditable nature with civil or military authorities.  His service was characterized as under other than honorable conditions.  He had completed 2 years, 10 months, and 
4 days of creditable active duty and had 21 days of lost time due to AWOL.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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.  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.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 July 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
15 July 1985.  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

_EF_____  _RJF____  _LDS___  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.




__Linda D. Simmons____
          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.