RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 DECEMBER 2003                  
	DOCKET NUMBER:   AR2003089605

	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 V. O'Connor, Jr.		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Yolanda Maldonado		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 1975 under other than honorable conditions discharge be upgraded.

2.  The applicant states that his prior honorable service was not "given due consideration."  He states that his prior service should serve as a reason to change his discharge.

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

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
20 June 1975.  The application submitted in this case is dated 7 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.  Records available to the Board indicate that the applicant was a member of the United States Army Reserve when he enlisted in the Regular Army on 
30 August 1965.  He continued to serve on continuous active duty through a series of reenlistment actions until his discharge under other than honorable conditions on 20 June 1975.  The applicant was 19 years old when he enlisted in the Regular Army and 29 years old when he was discharged.

4.  During his military service he performed duties as a cook, vehicle mechanic, welder, unit armorer and structure specialist.  He served two tours of duty in Germany, one in Vietnam between November 1966 and October 1967, and one in Korea.

5.  During the applicant's period of active Federal service as a Regular Army Soldier he was reduced in grade on three different occasions.  In May 1966 he was reduced from pay grade E-3 to pay grade E-2, in June 1970 he was reduced from pay grade E-5 to pay grade E-4, and in June 1975 he was reduced to pay 

grade E-1 upon his separation with an under other than honorable conditions discharge.

6.  The applicant was punished no less than 11 times under Article 15 of the Uniform Code of Military Justice.  He was punished in April 1965 for being absent from his place of duty, in November 1965 for not going to his place of duty and disrespect toward an officer, in May 1966 for disobeying a lawful order, in May 1967 for failing to go to his place of duty, in July 1968 for failing to go to his place of duty, in November 1968 for disobeying a lawful order, in December 1969 for disobeying a lawful order, in June 1970 for derelection of duty when he left his position as Charge of Quarters to go to a civilian movie theater, in August 1973 for failing to pay his debts after being order to do so by his commander, in May 1974 for purchasing controlled items in excess of the authorized limits while in Korea, and in September 1974 for one day of AWOL (absent without leave).

7.  The applicant's performance evaluation reports were less than outstanding, although in 1974 he did receive outstanding and excellent marks in various rating categories.

8.  There is no evidence that the applicant was ever awarded a personal decoration during his military service and he received more “fair” and “good” conduct efficiency ratings than “excellent” ratings upon departure from his various duty positions.

9.  Documents associated with the applicant administrative separation were not available to the Board.  However, his 1975 separation document and his separation orders indicate that he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, voluntarily submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11. Army Regulation 635-200 states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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.

12.  There is no evidence the applicant applied to the Army Discharge Review Board to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  While documents associated with the applicant's administrative separation were not in available records, in the absence of evidence to the contrary, the Board concludes that the applicant’s separation was warranted and accomplished in accordance with applicable laws and regulations in effect at the time.

2.  The evidence shows that the applicant’s service, prior to the period for which he was discharged under other than honorable conditions, was not so stellar as to warrant an upgrade of his final characterization of service.

3.  In order to justify correction of a military record the applicant must show, 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.

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

5.  Records show the applicant should have discovered the error or injustice now under consideration on 20 June 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 June 1978.  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

__RVO  _  __JEA___  __YM ___  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 V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2003089605	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031218	
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.