RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            December 4 2003                  
	DOCKET NUMBER:    AR2003090196

	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. Deyon D. Battle		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 (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states that after he was discharged, he continued to use alcohol and drugs.  He states that he got married and had a son, however, he lost both of them.  He states that he knew that he had to do something so he sought counseling to help him get his life together.  He further states that he has three grandchildren now and he has to live with the disgrace of a UD.  He states that he was not very good in school and that he thought that he could serve his country and become a man.  He goes on to state that he had family members that joined the Army and he believes that if he could have got some medical help, he could have made it through his last 6 months.  He concludes by stating that he was deprived of his medical help so his drug use got worst.

3.  The applicant submits no evidence in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of his records to show that he was honorably discharged on 5 June 1972.  The application submitted in this case was received on 2 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.  On 23 December 1970, he enlisted in the Army with parental consent, for 2 years, in the pay grade of E-1.  He successfully completed his training as a supply clerk.  He was promoted to the pay grade of E-2 on 23 April 1971 and to the pay grade of E-3 on 6 August 1971.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 2 August 1971, for being absent without leave (AWOL) from 21 July 1971 until 2 August 1971.  His punishment consisted of a forfeiture of pay.

5.  On 22 December 1971, NJP was imposed against him for disobeying a lawful command, for breaking restriction and for wrongfully appearing in the supply room without his uniform.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

6.  On 3 February 1972, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

7.  On 10 February 1972, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness, based on frequent incidents of a discreditable nature with military authorities.  He acknowledged receipt of the notification and he requested to have his case considered before a board of officers.

8.  The applicant had NJP imposed against him on 11 February 1972, for being disrespectful in language toward his superior officer and for having in his possession one ounce, more or less, of a habit forming narcotic drug (hashish).  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

9.  On 11 February 1972, the applicant underwent a drug urinalysis test and the results were negative.

10.  Although undated, the applicant underwent a psychiatric evaluation and he met the medical retention standards prescribed in Army Regulation 40-501.  The attending physician determined that he was mentally responsible; able to distinguish right from wrong and to adhere to the right; and had the mental capacity to understand and participate in board proceedings.  The physician further determined that there was no evidence of drug abuse and that his behavior was normal.  He was alert; he was well oriented to time, place and person; his thinking was normal; and his memory was good.  The physician opined that he had no significant mental illness and he recommended that the applicant be discharged under the provisions of Army Regulation 635-212.

11.  The facts and circumstances surrounding the applicant’s discharge are unavailable for review.  His Report of Transfer or Discharge (DD Form 214) shows the he was discharged on 5 June 1972, under the provisions of Army Regulation 635-212, for unfitness, based on frequent incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 5 months and 11 days of total active service.  He was furnished an Undesirable Discharge Certificate.

12.  A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-years statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation appears to have been accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore also appear to have been appropriate considering all the facts of the case.

3.  The applicant’s contentions regarding alcohol and drug additions have been noted.  However, he underwent a urinalysis test during the time that he had NJP imposed against him for having hashish in his possession and the urinalysis test results were negative.  

4.  His contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 18 years old at the time that he went AWOL.  He had NJP imposed against him on four separate occasions and considering his numerous acts of indiscipline, it does not appear that his UD was to severe.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 5 June 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 June 1975.  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

__KL___  __AR___  __WTM___  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	AR2003090196	
SUFFIX		
RECON		
DATE BOARDED	2003/12/04	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720605	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	583	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592	144.5100.0000/FREQUENT INCIDENTS	
2.  594	144.5300.0000/DRUG POSSESSION	
3.  		
4.		
5.		
6.