RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            19 FEBRUARY 2004               
	DOCKET NUMBER:   AR2003088657

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Robert L. Duecaster		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 October 1970 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that his discharge was unjust.  He states that he reenlisted for his present duty assignment but was transferred to another engineer unit.  He notes that during his first enlistment his records were good and he received an honorable discharge.

3.  The applicant states that he would like the discharge upgraded for "personal gratification" but also to obtain needed medical service.

4.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred in 1970.  The application submitted in this case is dated 20 March 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.  Records available to the Board indicate the applicant enlisted and entered active duty for a period of 3 years on 3 May 1967.  He successfully completed basic and advanced individual training with excellent conduct and efficiency ratings.

4.  Following completion of training the applicant was initially assigned to Fort Irwin, California as a wheeled vehicle repairman and in May 1968 was reassigned to an artillery element in Vietnam.

5.  While in Vietnam, the applicant was punished twice under Article 15 of the Uniform Code of Military Justice (UCMJ); once for disobeying an order and once 

for an 8 day period of AWOL (absent without leave).  In spite of his two records of nonjudicial punishment, the applicant was promoted to pay grade E-4 in January 1969.

6.  In June 1969 the applicant was reassigned from Vietnam to the 502nd Engineer Company in Germany.

7.  In spite of being punished under Article 15 of the UCMJ in September 1969 for possession of hashish, and being reduced to pay grade E-3, the applicant was honorably discharged for the purpose of reenlisting for his present duty assignment (502nd Engineer Company) on 27 October 1969.  He had completed 2 years, 5 months, and 25 days of his initial 3-year enlistment period at the time of his reenlistment.  

8.  In February and March 1970, while still assigned to the 502nd Engineer Company, the applicant was punished under Article 15 of the UCMJ.  His offenses include leaving his place of duty without permission and AWOL (absent without leave).

9.  In April 1970 the applicant was reassigned to the 237th Engineer Battalion in Germany.  

10.  In May 1970, the applicant commenced a series of AWOL periods and was ultimately dropped from the rolls of the Army in July 1970.

11.  According to information in the applicant's file, he returned to military control in August 1970.  

12.  Although documents associated with his administrative separation were not in records available to the Board, his 29 October 1970 separation document indicates that he was discharged under the provisions of Army Regulation 635-200 for unsuitability.  He was issued an undesirable discharge certificate.

13.  At the time of his October 1970 discharge he had a total of 3 years, 
3 months, and 19 days of creditable service, of which only 9 months and 24 days occurred after his October 1969 reenlistment.  He had 70 days of lost time.

14.  Army Regulation 635-200, in effect at the time, provided for the administrative separation of Soldiers for unsuitability.  It noted that action would be taken to separate a member for unsuitability when it was clearly established that in the judgment of his commander, he would not develop sufficiently to 

participate satisfactorily in further military training and/or become a satisfactory soldier.  It stated that commanders would ensure that before taking separation action against a member for unsuitability, adequate counseling and rehabilitation measures were taken.  As a minimum, Solders were to be reassigned at least once, with a minimum of 2 months.  Reassignment was to be between special court-martial jurisdictions when possible.

15.  There is no indication the applicant applied to the Army Discharge Review Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because his reenlistment contract was violated and that his initial period of service was honorable, is not supported by any evidence submitted by him, or contained in records available to the Board.

2.  The evidence, which is available, indicates that the applicant had several records of nonjudicial punishment prior to his reenlistment and that his reassignment to another unit was likely the result of rehabilitative measure by his commander in an effort to provide the applicant an opportunity to improve.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  

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.  He has submitted no evidence which would serve as a basis to upgrade his discharge as a matter of equity.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 29 October 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 October 1973.  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

__RJW__  __ MHM _  __ RLD__  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.  

		__ Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2003088657	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040219	
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.