RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            20 November 2003                  
	DOCKET NUMBER:   AR2003086983

	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. Eric S. Moore		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Robert Duecaster		Member	
	Ms. Linda D. Simmons		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 other than honorable conditions (UOTHC) be changed to honorable.

2.  The applicant states that after serving over two years active duty he was forced to leave the military for unjust reasons.  He also stated that this offense happened nearly 30 years ago.  

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
30 April 1973.  The application submitted in this case is dated 23 February 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 Regular Army on 1 April 1971 for a period of
3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 76V (Equipment Storage Specialist).
 
4.  On 19 December 1972, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the wrongful possession of marijuana.  His punishment consisted of a forfeiture of $43.00 pay per month for 1 month, suspended for sixty days, and extra duty for 7 days, suspended for sixty days. 

5.  As stated in a Certificate of Unsuitability for Reenlistment memorandum dated 14 February 1973, the applicant had received an Article 15 for two charges of being absent without leave (AWOL).  This Article 15 is not available.

6.  The applicant’s DA Form 20 shows four periods of AWOL: 23 September through 3 October 1972, 24 October through 26 October 1972, 13 November through 20 November 1972, and 12 February thru 13 February 1973.

7.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not present in his records.  

8.  The applicant’s DD Form 214 indicates that he was discharged on 30 April 1973 under the provisions of Army Regulation 635-200, chapter 13, separation for unfitness and was issued a discharge UOTHC.  He had completed 2 years,   4 months, and 6 days of creditable active service with 24 days of lost time. 

9.  There is no evidence of record to show that the applicant ever applied to the Army Discharge Review Board within that board’s 15-year statute of limitation.

10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, chapter 13 contained the policy and outlines the procedures for separating individuals for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge UOTHC was normally considered appropriate.

11. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

12. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.  

DISCUSSION AND CONCLUSIONS:

1.   The discharge packet is not in the applicant’s records.  However, 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.

2.  The evidence of record shows that the applicant was punished under Article 15, UCMJ on two occasions and was AWOL on four separate occasions.  His quality of service did not meet the standards of acceptable conduct and performance of duty of Army personnel.  The type of discharge given was and still is appropriate.

3.  Records show the applicant should have discovered the injustice now under consideration on 30 April 1973; therefore, the time for the applicant to file a request for correction of any injustice expired on 30 April 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

___JL___  ____LDS_  ___RW _  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.  

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003086983	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19730430	
DISCHARGE AUTHORITY	AR 635-200 Chapter 13  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.