RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            22 JANUARY 2004                  
	DOCKET NUMBER:   AR2003091019

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ronald J. Weaver		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 records be corrected by upgrading his discharge.

2.  The applicant states that he was one of 5 individuals cleaning a 5 ton truck by spraying water down the exhaust while another ran the engine to blow out the grime, however he was the only one charged, and believes his discharge should be upgraded to general.   

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on        24 August 1973.  The application submitted in this case is dated 29 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.  The applicant enlisted in the Regular Army on 28 August 1970, for a period of 3 years.  He completed basic combat training and advanced individual training at Fort Leonard Wood, Missouri.  He served in Korea from February 1971 until April 1972.  

4.  Between December 1970 and May 1973, he received 6 nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) , failure to obey a lawful order, failure to repair, the wrongful possession of marihuana, and dereliction in the performance of duty.  His punishments included reduction, restriction, forfeiture, and extra duty.

5.  On 7 July 1972, he was convicted by a summary court-martial of being AWOL from 24 May 1972 to 23 June 1972.  His sentence was a forfeiture of pay, reduction to the pay grade of E-1, and to perform hard labor without confinement for 45 days. 

6.  On 20 December 1972, he was convicted by a special court-martial of damaging the exhaust pipe of a 5 ton truck cargo engine by squirting water down the exhaust pipe.  He was sentenced to a forfeiture and extra duty.
7.  On 3 April 1973, the applicant was notified by his commander of his intent to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unfitness.

8.  On 23 April 1973, his commander recommended that he appear before a board of officers for the purpose of determining whether he should be discharged before the expiration of his term of service. 

9.  On 20 July 1973, after consulting with counsel, the applicant acknowledged that he understood the basis for his commander’s action to separate him from the service for unfitness.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, declined to submit statements in his own behalf, and waived representation by legal counsel.  He further acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event of a less than honorable discharge, and that he may be ineligible for all benefits as a veteran under both Federal and State laws.  

10.  On 8 August 1973, the appropriate separation authority approved the applicant’s separation under the provisions of Army Regulation 635-200 for unfitness, and directed his reduction to the lowest enlisted grade, and the issuance of an undesirable discharge.  

11.  On 24 August 1973, the applicant was discharged under the provisions of Army Regulation 635-200, under conditions other than honorable and issued an undesirable discharge certificate.  His DD Form 214 indicates he had 2 years, 
10 months and 10 days of creditable service, and 47 days of lost time.  

12.  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 debts, 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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2.  Evidence shows that the applicant was separated for numerous acts of misconduct, and not the single act as stated in his request.   

3.  The applicant declined counsel, waived his right to a hearing before a board of officers, and acknowledged that he understood the effects of an undesirable discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 August 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         23 August 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL  __  __AAO__  __RJW__  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.  

		____See Attached_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003091019	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040122	
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.