RECORD OF PROCEEDINGS

	IN THE CASE OF:      .

	BOARD DATE:           December 16, 2003                  
	DOCKET NUMBER:   AR2003086121

	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	
	Ms. Yvonne J. Foskey		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John N. Slone		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, in effect, that his undesirable discharge (UD) be upgraded.  

2.  The applicant states, in effect, that during his 39 months of service, he was involved in three incidents that did not support the discharge action taken against him.  He claims that he injured his back while in basic combat training, for which he now takes a battery of pills.  As a result of this injury, standing on his feet for more than a couple of hours results in his suffering pain in his feet and back.  He also indicates that he is a Vietnam veteran and suffers from effects of exposure to Agent Orange and from a Post Traumatic Stress Disorder (PTSD).  He further states that while serving in the Republic of Vietnam (RVN), he contracted malaria.  He concludes by indicating that in the 29 plus years since his discharge, he has been a model citizen.  

3.  The applicant provides the following documents in support of his application:  three enclosed self-authored letters; a Department of Veterans Affairs (VA) appeal letter; a VA Agent Orange treatment notification letter, dated 2 April 2003 with ten pages of medical treatment documents; copies of documents related to his separation processing; a letter of appreciation, dated 19 July 1973; a character reference, dated 18 July 1994; a certificate of training; and two certificates of recognition.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting an upgrade of his 12 September 1973 discharge.  The application submitted in this case is dated 20 April 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.  On 7 August 1970, the applicant entered the Regular Army for 4 years.  His Enlisted Qualification Record (DA Form 20) shows that he successfully completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort Devens, Massachusetts.  Upon completion of AIT, he was awarded military occupational specialty 05H2 (Morse Code Interpreter).

4.  The applicant’s DA Form 20 also shows that the highest rank he attained while serving on active duty was specialist four (SP4).  It also confirms that during his active duty tenure, he served in the RVN and earned the following awards:  National Defense Service Medal; Vietnam Service Medal with 2 bronze service stars; RVN Campaign Medal with 60 device; Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and Expert Marksmanship Qualification Badge with Grenade Bar.

5.  The applicant’s record further reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  4 June 1971, for being absent without leave (AWOL) for 13 days; 21 April 1972, for two specifications of being absent from his appointed place of duty; 12 February 1973, for two specifications of being absent from his appointed place of duty and for disorderly conduct; and 
7 September 1973, for failing to go to his appointed place of duty at the prescribed time.  

6.  On 18 July 1973, the applicant was convicted in Hampton Civil Criminal Court pursuant to his pleas of possession of marijuana and felonious possession of LSD.  The resultant sentence included $88.75 in court costs and 60 days in jail, which was suspended for two years.

7.  On 25 July 1973, the applicant’s unit commander notified him that action was being initiated to eliminate him from the Army under the provisions of section VI, Army Regulation 635-206, based on his civil conviction.  

8.  On 30 July 1973, the applicant completed a statement indicating that he did not intend to appeal the civil conviction.  

9.  On 31 July 1973, the applicant consulted with legal counsel, and after being advised of the basis of the contemplated separation action and the effects, he completed his election of rights.  He elected to waive consideration of his case by a board of officers and not to submit statement of rebuttal in his own behalf.  

10.  On 27 August 1973, the separation authority approved the applicant’s discharge and directed that he receive an UD.  On 12 September 1973, the applicant was discharged accordingly.  The DD 214 issued to him at that time confirms that he completed 2 years, 8 months, and 2 days of creditable active military service, and that he accrued 154 days of time lost due to AWOL and confinement.

11.  On 26 July 1973, the applicant underwent a separation physical examination and was cleared for retention/separation by competent medical authority.  The record gives no indication that the applicant suffered from any medically disqualifying condition at the time he underwent this examination.  

12.  On 17 July 1974, the Army Discharge Review Board (ADRB) reviewed the applicant’s case and after determining that his discharge was proper and equitable, it denied the applicant’s request for an upgrade to his discharge.

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for separation of enlisted personnel.  It provided, in pertinent part, that members convicted by civil authorities could be considered for separation.  An undesirable discharge was normally considered appropriate.

14.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge was too harsh, that he suffers from service connected medical conditions, and that his post service conduct supports upgrading his discharge were carefully considered.  However, none of these factors provide a sufficient evidentiary basis to grant the requested relief.  

2.  The evidence of record confirms that the applicant was cleared for separation by competent medical authority and there is no indication that he suffered from a medically disabling condition at the time of his discharge.  It also shows that the he consulted with legal counsel, and after being advised of the impact of the UD, he elected to waive his right to have his case considered by a board of officers.  

3.  Lacking evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the character of the applicant’s discharge is commensurate with his overall record of military 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.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 17 July 1974.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 16 July 1977.  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

__SAC ___JS ___SLP  ___      _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		Samuel A. Crumpler
		  CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED	2003/12/16	
TYPE OF DISCHARGE	UOTHC, 	
DATE OF DISCHARGE	1973/09/12	
DISCHARGE AUTHORITY	AR635-206 . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY,	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.