RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  22 January 2004
	DOCKET NUMBER:  AR2003090108

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Ronald J. Weaver		Member	
	Mr. Arthur A. Omartian		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 upgrade to general, under honorable conditions.

2.  The applicant states that there was no injustice in his discharge but he is requesting this upgrade based on the past 30 years as a good citizen and he is sorry for his past mistakes.

3.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error, which occurred on 13 July 1973, the date of his discahrge.  The application submitted in this case is dated 11 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.  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's records show that he enlisted and entered active duty on 27 January 1972.  While still in training he was absent without leave (AWOL) on three occasions for a total of 9 days and was punished under Article 15, Uniform Code of Military Justice (UCMJ) on three occasions for the AWOL offenses and absence from his place of duty.  His punishments consisted of fines, extra duties, and restriction.

4.  After completion of training as a aircraft armament subsystems repairman, he was assigned to Vietnam from 26 August through 27 December 1972.  He had been promoted to pay grade E-3 effective 26 August 1972.  While there he was punished under Article 15, UCMJ for failure to report for guard duty.  His punishment consisted of a fine.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was AWOL on three separate occasions between 8 January and 26 April 1973 for a total of 93 days.  The final AWOL was terminated by apprehension by civil authorities.

6.  The applicant's DA Form 20 also shows that the applicant was in confinement from 27 April to 12 July 1973.  While in confinement at the installation retraining brigade his unit commander recommended the applicant for separation for unfitness.  On approximately 2 July 1973, a Report of Mental Status Evaluation was prepared.  The report showed the applicant's behavior was normal; he was fully alert and oriented with a level mood.  His thought process was clear and his thought content normal.  His memory was good.  It was determined that he was mentally responsible, able to distinguish right from wrong, and to adhere to the right.  He had no significant mental illness and was cleared for administrative separation.

7.  The unit commander's recommendation noted that the applicant's conduct and efficiency had been unsatisfactory and he had been convicted by a special court-martial.  While in the retraining brigade he had received 12 adverse observation reports.  He had demonstrated a disregard for military authority and indicated no desire to return to military duty.

8.  On 12 July 1973, after consultation with counsel, the applicant waived his rights to consideration of his case by a board of officers, to submit statements in his own behalf, and to be represented by counsel.  The separation authority approved the recommendation and directed separation with an Undesirable Discharge Certificate.

9.  Effective 13 July 1973, the applicant was discharged under other than honorable conditions in accordance with Army Regulation 635-200, chapter 13.  He had 11 months and 18 days creditable service and 179 days lost time.

10.  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.  A discharge under other than honorable conditions is normally considered appropriate.

11.  On 22 January 1980, the ADRB in a unanimous decision, voted to deny the applicant's request for a discharge upgrade noting that his UOTHC discharge was both proper and equitable.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.  The character of the discharge is commensurate with the applicant's overall record of military service

2.  The applicant's personal problems and good citizenship are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  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.

4.  Records show that the applicant should have discovered the injustice now under consideration on 22 January 1980, the date of his denial by the ADRB.  Thus, the applicant should have filed an application with the ABCMR within 3 years from 22 January 1980.  However, the applicant did not do so and has not provided a compelling explanation justifying failure to file within the 3-year statute of limitations.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jl____  ___rw___  __ao_____  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.  

		__Joann Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090108	
SUFFIX		
RECON		
DATE BOARDED	20040122	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19730713	
DISCHARGE AUTHORITY	AR 635-200 CH 13	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.