RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           23 March 2004                  
	DOCKET NUMBER:   AR2003090876

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Lawrence Foster		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.

2.  The applicant states he was in the city jail and could not defend himself during the discharge proceedings.

3.  The applicant provides no supporting evidence or documentation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged injustice which occurred on 15 June 1971.  The application submitted in this case is dated 6 May 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.  Although not requested by the applicant, it is noted that the applicant’s DD Form 214 (Report of Transfer or Discharge) incorrectly lists his total period of service as only 10 months and 9 days.  This issue will be addressed. 

4.  His military records show the applicant entered active duty on 3 March 1970, completed training in the military occupational specialty (MOS) of 67A (aircraft repair helper).  On his way to Vietnam, he was AWOL from 17 September 1970 to 1 October 1970 although there is no record of any disciplinary action.

5.  The applicant served in Vietnam with the Headquarters and Headquarters Company, 2nd Battalion, 101st Airborne Division from 18 October 1970 through 3 December 1970 and with Company A, 101st Aviation Battalion, 101st Airborne Division from 4 December 1970 through 5 October 1971.

6.  On 3 May 1972 a special court-martial found the applicant guilty of absence without leave (AWOL) from 29 December 1971 to 22 February 1972.  His sentence was forfeiture of $50.00 per month for two months, 45 days confinement, and reduction in grade to pay grade E-1.

7.  On 14 July 1972 a special court-martial found the applicant guilty of AWOL from 17 April to 19 April 1972 and from 3 May to 16 June 1972.  His sentence was forfeiture of $140.00 per month for two months and 60 days confinement.
8.  Between August 1970 and March 1973, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) four times for AWOL, twice for failure to go to his proscribed place of duty, and once each for communicating a threat toward a noncommissioned officer (NCO), disrespectful language toward a commissioned officer, willfully disobeying a direct order from a commissioned officer, and absenting himself from his appointed place of duty.

9.  On 21 May 1973 the applicant was notified that a board of officers hearing would be held.  On 30 May he appeared with counsel before a board officers that was held to determine if he should be retained on active duty.  The board found that it was not desirable to further retain the applicant due to his character habits and traits as manifested by his repeated AWOL and habitual shirking.  Rehabilitation was not deemed possible.  The Board recommended that the applicant be discharged with an undesirable discharge (UD).  

10.  The discharge authority approved the board of officers findings and recommendations and directed that the applicant receive an undesirable discharge.  

11.  On 7 June 1973 civilian authorities arrested the applicant on the charge of first-degree burglary.  He was held in pre-trial confinement.  Further information on this incident, the court action, and the applicant’s status from the date of his arrest through his date of discharge are not of record.

12.  The applicant was discharged on 19 June 1973 under Army Regulation 635-200, paragraph 13-5a(1) with an UD by reason of unfitness.  He had approximately 2 years and 8 months of creditable service with 218 days lost time due to AWOL or confinement.  

13.  The applicant’s DD Form 214, at item 22 lists, his net service for this period as 10 months and 9 days service, his other service as 0, his total service as 10 months and 9 days, and his foreign service as 1 year and 22 months in Vietnam.

14.  The staff of the Board calculates he had 2 years, 8 months and 26 days of creditable service..

15.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 and unsuitability.  Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was afforded all legal rights and he was present at the board of officers hearing and was notified of the discharge authority' decision prior to being incarcerated. Therefore, his contention that he was prevented from defending himself during his discharge process has no merit. 

2.  The contention of the applicant has been noted. However, it is not supported by either evidence submitted with the application or the evidence of record. The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 June 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 June 1976.   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.

4.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TDH __  __LF  ___  ___KAH_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of the case are insufficient as a basis for correction of the records of the individual concerned.
2.  As a result, the Board further determined that there is insufficient evidence to show that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show that the applicant’s correct period of creditable service, 2 years, 8 months and 26 days. 

		_    Thomas D. Howard____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090876 	
SUFFIX		
RECON		
DATE BOARDED	20040323	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	145 upgrade	
2.		
3.		
4.		
5.		
6.