RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	   7August 2007
	DOCKET NUMBER:  AR20070004409 


	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.  

2.  The applicant states that his service was honorable, with the exception of two nonjudicial punishments (NJP’s) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for minor infractions.  

3.  The applicant provides copies of his Report of Separation from Active Duty (DD Form 214), and two NJP’s.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 12 April 1976, the date of his discharge.  The application submitted in this case is dated 9 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 3 December 1973, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 13B1O (Field Artillery Crewman).

4.  On 19 May 1974, the applicant was assigned for duty as a cannoneer with the 2nd Battalion, 39th Field Artillery Regiment, in the Federal Republic of Germany.

5.  On 18 November 1974, the applicant attained the rank of private first class, pay grade E3.

6.  On 10 July 1974, the applicant accepted NJP for willful failure to obey a lawful order to remain in the company area. The punishment included reduction to private, pay grade E1 (suspended).


7.  On 5 June 1975, the applicant accepted NJP for absenting himself from his appointed place of duty.  The punishment included a reduction to private, pay grade E2 (suspended); a forfeiture of $75.00 pay per month for 1 month; and 
7 days restriction.

8.  On 8 April 1976, the applicant’s commander recommended that the applicant be barred to reenlistment.  The commander cited the applicant's NJP's, his failure to pay a just debt, and that he was undergoing an administrative discharge for drug abuse.  The appropriate commander approved the bar to reenlistment and the packet was forwarded to the United States Army Enlisted Records Center, Fort Benjamin Harrison, Indiana, for filing in the applicant’s official military personnel file.

9.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 14 April 1976, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 2 years, 4 months and 10 days of creditable active duty.

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 statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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.  The applicant’s contention that his service was honorable with the exception of two minor infractions is not supported by the available evidence.

3.  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 the aforementioned requirement.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 April 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
11 April 1979.  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.