RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            18 November 2003 
	DOCKET NUMBER:    AR2003090881

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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 upgraded to honorable.

2.  The applicant states that, due to an injury to his right hand and a lack of medical attention, he went home to have it attended to.  After his hand healed, he came back but he was terminated with a discharge UOTHC.

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 21 August 1974.  The application submitted in this case is dated 5 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.  The applicant enlisted in the Regular Army on 6 December 1972.  He completed basic training and advanced individual training and was awarded military occupational specialty 76Y (Armorer/Unit Supply Specialist).

4.  A DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) dated 24 October 1973 shows the applicant had accidentally lacerated his right forearm on 1 August 1973 when he struck a glass pane with his right hand.  A witness statement from his roommate indicated that his roommate took him to the emergency room.  An attached statement from his commander indicated the investigation was held up when the applicant departed absent without leave (AWOL).

5.  On 11 October 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go his appointed place of duty and for being AWOL from on or about 10 September to on or about 25 September 1973.

6.  On 15 October 1973, the applicant accepted NJP under Article 15, UCMJ for breaking restriction.

7.  On 10 January 1974, the applicant accepted NJP under Article 15, UCMJ for two specifications of absenting himself from his place of duty.

8.  On 4 February 1974, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his unit.

9.  On 4 March 1974, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his appointed place of duty and for breaking restriction.

10.  On or about 24 April 1974, the applicant received an approved local bar to reenlistment.  The bar to reenlistment cited the applicant's record of NJPs, a letter of indebtedness dated 27 February 1974, and the applicant's 1 February 1974 conviction by the 205th Judicial District Court, El Paso, TX for fraudulent use of a credit card.

11.  On 28 May 1974, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his place of duty.

12.  The applicant's discharge packet is not available.

13.  On 10 July 1974, the applicant underwent a mental status evaluation.  He was found to have no signs of being psychotic or neurotic.  He was found to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

14.  On 21 August 1974, the applicant was discharged, with a discharge UOTHC, in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) by reason of unfitness.  He had completed 1 year, 8 months, and         16 days of creditable active service and had 26 days of lost time and 15 days of excess leave.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1), then in effect, contained the policy and outlined the procedures for separating individuals for unfitness when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.  

16.  Army Regulation 635-200 states, in pertinent part, 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.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record to show the applicant was denied medical treatment for an injured right hand at any time.

2.  The evidence of record shows the applicant had an extensive history of misconduct to include a civilian conviction for fraudulent use of a credit card.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type of discharge given was and still is appropriate.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 21 August 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 August 1977.  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

__jns___  __mdm___  __bje___  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.  

		___John N. Slone__
		        CHAIRPERSON

INDEX

CASE ID	AR2003090881	
SUFFIX		
RECON		
DATE BOARDED	20031118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19740821	
DISCHARGE AUTHORITY	AR 635-200, ch 13	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.