RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 MARCH 2004                  
	DOCKET NUMBER:   AR2003094363

	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.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert J. Osborn II		Member	

	The applicant and counsel if any, did not appear before the Board.

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

2.  The applicant states that he was informed that his character of service would be upgraded six months after his discharge. 

3.  The applicant states that he provides a document from a Department of Veterans Affairs (VA) hospital in Memphis, Tennessee; however, there were no documents received with his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 19 March 1973.  The application submitted in this case is dated 10 July 2003.  
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 limitation 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 enlisted in the Army for three years on 25 March 1968, completed training as a supply clerk, and was assigned to an engineer company in Germany.  On 3 December 1969 he requested reenlistment and requested a waiver of lost time in order to reenlist.  A DA Form 3072 (Request for Waiver of Disqualification for Reenlistment) shows that he received nonjudicial punishment on four occasions, for AWOL (absent without leave), disorderly conduct, missing troop deployment, and missing bed check; and that he had two periods of AWOL, one for six days and the other for 16 days.  His request was approved.  He was discharged on 7 August 1970 for the purpose of reenlistment.  He reenlisted for three years on 8 August 1970.

4.  He departed Germany in December 1970 and in February 1971 was assigned to a supply and service company in Vietnam.  In November 1971 he returned to the United States.  He was assigned to Fort Leonard Wood, Missouri in January 1972.

5.  The applicant's second enlistment was characterized by nonjudicial punishment on eight occasions, on 8 February 1971 for AWOL, 15 May 1971 for failure to go to his place of duty, 24 June 1971 for disrespect to a noncommissioned officer, 25 January 1972 for AWOL, 18 February 1972 for AWOL, 7 June 1972 for AWOL, 18 October 1972 for AWOL, and 15 November 1972 for wrongfully appropriating a government vehicle, breaking restriction, and drunk driving.     

6.  On 7 February 1973 the applicant's commanding officer notified the applicant that he was recommending that he be discharged from the Army for unfitness under the provisions of Army Regulation 635-200, chapter 13.

7.  The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action.  He waived consideration of his case by a board of officers, and declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the undesirable discharge under conditions other than honorable that he might receive.   

8.  On 20 February 1973 the applicant's commanding officer recommended to the separation authority that the applicant be discharged because of his frequent acts of a discreditable nature with military authorities, and recommended that he be discharged for unfitness.  On 12 March 1973 the separation authority approved the recommendation and directed that the applicant be furnished an Undesirable Discharge Certificate.  He was discharged on 19 March 1973.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the discharge of enlisted personnel.  Paragraph 13 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.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.
 
2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.  In view of the applicant's numerous acts of indiscipline, it appears that his discharge under other than honorable conditions was warranted.

3.  There is no evidence and the applicant has not provided any to support his contention that he was informed that his discharge would be upgraded six months after his discharge.  Nonetheless, the Army has no such policy in this respect.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   
 
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 March 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         18 March 1976.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RWA__  __LDS __  __RJO __  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.

		____ Roger W. Able_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003094363	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040318	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.