RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            04 DECEMBER 2003                  
	DOCKET NUMBER:   AR2003090169

	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. Walter T. Morrison		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Kenneth W. Lapin		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 undesirable discharge be upgraded to "under honorable conditions."

2.  The applicant states that the authority that ordered his discharge was improperly advised about his situation.  He notes specifically, that the discharge authority was told that he "had no conviction by court martial and received no confinement" when in actuality, as a result of his misconduct, he had been convicted by a special court-martial and sentenced to confinement "with a recommendation for assignment to the US [United States] Army retraining brigade."

3.  The applicant contends that had the discharge authority been made aware of this recommendation, instead of believing that he had "received no punishment and had no potential for future honorable service" it was likely that he would have been able to receive a "higher grade of discharge."

4.  The applicant also states that the discharge authority was asked to waive rehabilitation action on the basis of his commander's recommendation that he had served in four units.  The applicant states that those units only included his basic and advanced individual training units, where he states he did well, and his one permanent duty assignment where he contends he "got on the bad side of the Company Commander and the PCF [Personnel Control Facility].”

5.  The applicant provides a copy of the discharge recommendation and an extract from his special court-martial action in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
15 November 1974. The application submitted in this case is dated 15 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.  Records available to the Board indicate that the applicant entered active duty on 18 September 1972.  He successfully completed basic and advanced individual training and received excellent conduct and efficiency ratings during training.  He was promoted to pay grade E-2 in January 1973 and in February 1973 was assigned to an infantry element at Fort Campbell, Kentucky, in accordance with his enlistment contract.

4.  In May 1973 the applicant was punished under Article 15 of the Uniform Code of Military Justice for 15 days of AWOL (absent without leave) in April 1973.  He was punished again, in November 1973, for 2 more days of AWOL in October 1973.

5.  In January 1974 the applicant was punished for failing to go to his appointed place of duty and in March 1974 he was the subject of an investigation by the Fort Campbell CID (Criminal Investigation Division) for possession of heroin.  In statements taken by CID officials, the applicant admitted to using heroin.

6.  In a March 1974 performance evaluation report, the applicant was noted to be a below average soldier in job performance and that his appearance was below the standards of the rest of the platoon.

7.  On 15 April 1974 the applicant departed AWOL.  He surrendered to military authorities on 17 May 1974 after being dropped from the rolls of the Army.  He was subsequently punished under Article 15 of the Uniform Code of Military Justice and barred from reenlisting.

8.  On 26 June 1974 the applicant departed AWOL for a fourth time.  He was apprehended by civilian authorities and returned to military control on 
9 September 1974.  Following his returned to military control, the applicant was placed in pre-trial confinement, and assigned to the Special Processing Company of the United States Army Personnel Control Facility at Fort Knox, Kentucky.

9.  On 27 September 1974 the applicant underwent a mental status evaluation which found him fully alert and oriented, his thought process clear and normal, and that he was able to distinguish right from wrong and was able to adhere to the right.  

10.  On 3 October 1974, the day before the applicant was to appear before a special court-martial, the commander of the Special Processing Company at the Personnel Control Facility (PCF) initiated action to administratively separate the applicant from active duty for unfitness due to "incidents of a discreditable nature with military authorities."  The applicant acknowledged receipt of the proposed separation action and waived his attendant rights.  

11.  The applicant appeared before a special court-martial on 4 October 1974 and pled guilty to being AWOL before a military judge.  In an unsworn statement, presented by the applicant during his court-martial, the applicant indicated that he had been a corporal when he was first punished under Article 15 of the Uniform Code of Military Justice after his first period of AWOL in 1973.  He stated that after that first action he was "anxious to regain rank" and went on leave, but at the end of the leave period he wrecked his car.  When he asked for a 2 day extension of his leave period, he thought it had been granted.  However, he stated that when he returned he was charged with 2 days of AWOL and punished again.  He admitted to a problem with drugs but that his commander lied to him when he asked why he was not being promoted.  He stated that his commander told him he had positive drug tests but the applicant stated that his social worker had told him only his first drug test was positive.  Discouraged, the applicant stated that he went AWOL again.  When he turned himself in he found he was going to be returned to the same unit he was already having problems at and so departed AWOL for the fourth time.

12.  The military judge, presiding over the special court-martial, found the applicant guilty of being AWOL and sentenced him to 2 months confinement at hard labor and forfeiture.  The military judge also indicated in the court-martial action that he was going to recommend that the applicant be assigned to the United States Army Retraining Brigade.

13.   On 8 October 1974, prior to approval of the court-martial action, the applicant's separation action was forwarded to the commander of the Personnel Control Facility.  The recommendation did not include information concerning the applicant's 4 October 1974 special court-martial action or sentence to confinement because that action had not yet been approved.

14.  The special court-martial and the separation action were both approved on 
21 October 1974.  In approving the separation action, the discharge authority also waived rehabilitation actions.  The court-martial convening authority and the discharge authority were the same general officer.

15.  On 15 November 1974 the applicant was discharged for unfitness under the provisions of Army Regulation 635-200, Chapter 13.  He was issued an undesirable discharge certificate.  At the time of the applicant's separation, he had 1 year, 8 months, and 13 days of creditable service and more than 170 days of lost time.

16.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness.  Separation for unfitness included frequent incidents of a discreditable nature, drug abuse, shirking, failure to pay just debts, and/or failure to support dependents.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

17.  In May 1979 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that omission of key information concerning his court-martial and sentence to confinement from his discharge action somehow would have changed the outcome of the action is without foundation.  The court-martial action had not been approved at the time the administrative discharge action was initiated and therefore it would have been inappropriate to include that information in the action.  The absence of that information did not create any error or injustice.

2.  The court-martial convening authority and the discharge authority were the same individual.  Had that general officer felt that assigning the applicant to the Retraining Brigade would have been beneficial to the military he would have so ordered in the court-martial action.  The general officer would have been well aware of the applicant's repeated AWOL periods and his involvement with drugs and armed with that information concluded that separation for unfitness and waiver of any rehabilitation efforts was appropriate.

3.  Records show the applicant should have discovered the error or injustice now under consideration in May 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired in May 1982.  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

__WTM  _  __ALR __  __KWL__  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.  

		___Walter T. Morrison_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090169	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031204	
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.