RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            05 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003089586

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		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 be upgraded to honorable.

2.  The applicant states that he feels he should be given clemency because of his post service conduct. 

3.  The applicant indicates that he provides letters of recommendation from his church, civic groups and volunteer organizations, however, there were no letters of support included with his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
4 December 1974.  The application submitted in this case is dated 7 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.  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. 

3.  The applicant enlisted in the Regular Army on 30 November 1972, for a period of 3 years.  He completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Lee, Virginia.  He served in Germany from May 1973 to December 1973.

4.  Between August 1973 and September 1974 the applicant received six nonjudicidual punishments, under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order, being absent from his place of duty, and for failure to go to his appointed place of duty.  His punishments included forfeitures, extra duty, and restriction.  

5.  Between January 1974 and March 1974, he received nine formal counseling sessions for being absent from his place of duty, disrespectful language, shirking his duties, and his behavior. 

6.  On 3 June 1974, he was convicted by a special court-martial of being absent without leave (AWOL) from 9 April to 12 April 1974.  His sentence included reduction, forfeiture, extra duty and restriction.

7.  On 18 June 1974, a Medical Evaluation and a Mental Status Evaluation cleared the applicant for separation. 

8.  A 12 August 1974 Psychiatric Evaluation diagnosed the applicant with an inadequate personality, manifested by poor impulse control, an inability to cope with authority, low frustration tolerance, acting out, and poor self-image.  The evaluation recommended that the applicant’s profile indicated a marked unsuitability for service, and indicated that administrative separation was a appropriate. 

9.  On 23 October 1974, the applicant’s commander notified him of his intent to separate him under the provisions of Army Regulation 635-200, paragraph 
13-12, for unfitness, because of frequent incidents of a discreditable nature with civil or military authorities.  

10.  On 25 October 1974, after consulting with counsel, the applicant acknowledged he had been advised of the basis for his commander’s intent to discharge him.  He waived consideration of his case by a board of officers, representation by counsel, and personal appearance before a board of officers, and he also declined to submit statements in his own behalf.  He further acknowledged that he understood the ramification of receiving an undesirable discharge, and that he could encounter substantial prejudice in civilian life. 

11.  On 29 October 1974, the battalion commander recommended the applicant’s elimination from the service under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-5, for unfitness.

12.  On 22 November 1974, the appropriate separation authority approved the applicant’s elimination for the service for unfitness, and directed the issuance of an undesirable discharge.

13.  On 4 December 1974, the applicant was separated under the provisions of the above cited regulation.  His DD Form 214 (Report of Separation for Active Duty) indicates he had 1 year, 11 months and 17 days of active service, and 
18 days of lost time. 

14.  On 7 May 1982, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant’s good post-service conduct is not supported by any evidence and would not warrant the relief requested. 

3.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 7 May 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 May 1985.  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

__FNE __  __JPI   __  __KAH __  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.  

		____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089586	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040205	
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.