RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            29 JANUARY 2004                  
	DOCKET NUMBER:   AR2003091009

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Walter t. Morrison		Member	
	Ms. Karen Y. Fletcher		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 be upgraded to honorable.

2.  The applicant made no other statement, nor did he provide any evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 16 June 1977.  The application submitted in this case is dated 11 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 Army for four years on 7 December 1973 and was trained as an infantryman.  His personnel qualification record shows that he was assigned to an infantry battalion at Fort Hood, Texas, as an automatic rifleman in April 1974.  Except for a six month period of temporary duty with his unit to Germany from April to October 1975, he remained assigned to Fort Hood until his discharge.        

4.  The applicant was promoted to specialist four, pay grade E-4, in April 1975.  An enlisted efficiency report prepared in August 1975 shows that his rater considered the applicant's appearance, conduct, and job knowledge outstanding; and that the applicant set the example for others.

5.  Beginning in the fall of 1976 the applicant's conduct deteriorated.  He was counseled on two occasions in September 1976.  He was AWOL (absent without leave) from 26 September through 28 September 1976.  On 4 November 1976 he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his unit.  He subsequently received nonjudicial punishment on three more occasions – for disobeying a lawful order, absenting himself from his guard post, being drunk on duty; disrespect to an NCO (noncommissioned officer); and for using provoking words to an NCO.   

6.  On 3 February 1977 the applicant's commanding officer notified the applicant that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200, chapter 13, because of misconduct – frequent incidents of a discreditable nature with civil or military authorities. 
7.  Prior to this notification, the applicant was referred for a physical and mental evaluation.  A 4 February 1977 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of    1 1 1 2 1 1.  In the report of medical history that he furnished for the examination, the applicant stated that he was in good health.  A report of mental status evaluation shows that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and able to understand and participate in board proceedings.     

8.  On 10 February 1977 the applicant stated that he had been advised by counsel of the basis for the contemplated action to separate him for misconduct.  He requested consideration of his case by a board of officers.  

9.  The applicant's commanding officer recommended that the applicant be eliminated from the Army.  On 3 March 1977 the separation authority appointed a board of officers to consider the recommendation to eliminate the applicant from the Army. 

10.  The board convened at Fort Hood on 18 March 1977.  The applicant was present at the board proceedings and was represented by counsel.  The applicant's section sergeant, platoon sergeant, first sergeant, and company commander, all testified to the applicant's poor duty performance and unsatisfactory conduct.  They all stated that he should be eliminated.  The applicant testified in his own behalf, stating that he did not get into trouble in 1974, but was involved in a fight in 1975.  He stated that he had a clean record until November 1976 when he received his first Article 15.  He stated that his conduct was unsatisfactory; however, he was now doing pretty good, and that he was trying to stay out of trouble.  He stated that he had been drunk and had been in fights.  He stated that he had no objections to any of the reasons for his nonjudicial punishment. 

11.  On 19 April 1977 the board of officers determined that the applicant was undesirable for further retention in the Army and that his rehabilitation was not deemed possible.  The board recommended that the applicant be discharged because of misconduct with a discharge certificate under other than honorable conditions. 

12.  On 16 May 1977 the Staff Judge Advocate, 2nd Armored Division, determined that the proceedings were legally sufficient.  On 19 May 1977 the Adjutant General, 2nd Armored Division, recommended that the separation authority approve the recommendation that the applicant be eliminated from the Army.  On 20 May 1977 the separation authority approved the recommendation and directed that the applicant be issued a discharge certificate Under Other Than Honorable Conditions.  The applicant was discharged on 16 June 1977.   

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, establishes policy and prescribes procedures for separating members for misconduct, to include frequent incidents of a discreditable nature with civil or military authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested and was afforded the opportunity to appear before a board of officers.  He was represented by counsel and testified in his own behalf. The applicant's administrative separation was 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 were appropriate considering all the facts of the case.  Considering his numerous acts of indiscipline, it does not appear that his discharge under other than honorable conditions was too severe.  

3.  The applicant has submitted no evidence or any argument in support of his request.   

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 June 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         15 June 1980.  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

__RVO__  __WTM__  __KYF __  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.  

		Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2003091009	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040129	
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.