RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:          19 February 2004                   
	DOCKET NUMBER:  AR2003091818

	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. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Robert L. Duecaster		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, in effect, that his undesirable discharge (UD) be upgraded.  

2.  The applicant states, in effect, that his record of promotions showed he generally was a good soldier, he was close to finishing a tour and it was unfair to give him a bad discharge, his record of nonjudicial punishment (NJP) indicates only isolated or minor offenses, his unauthorized absence/ absent without leave (AWOL) record indicates only minor offenses, and his ability to serve was impaired by his youth and immaturity.  

3.  The applicant provides no additional documents or evidence in support of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of a perceived error or injustice which occurred on 7 July 1971.  The application submitted in this case is dated 16 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’s record shows that he enlisted in the Regular Army and entered active duty on 5 February 1968.  He served in military occupational specialty 11B (Infantryman) and the highest rank he attained while serving on active duty was specialist four (SP4).  

4.  The applicant’s Enlisted Qualification Record (DA Form 20) confirms that during his tenure on active duty the applicant earned only the National Defense Service Medal and Parachute Badge.  There are no other acts of valor, significant achievement, or service warranting special recognition documented in the record. 

5.  The applicant’s record does reveal an extensive disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 20 February 1968 and 25 February 1971.  
6.  The record also shows that on 14 October 1970, the applicant was found guilty by a special court-martial of being AWOL from on or about 21 July through on or about 27 August 1970.  The resultant sentence included a reduction to private/E-1 (PV1), confinement at hard labor for two months, and a forfeiture of $59.00 per month for three months.  

7.  The record is void of a separation packet containing the facts and circumstances surrounding the applicant’s discharge processing.  However, it does include a summary prepared by a member of the Army Discharge Review Board (ADRB) staff in preparation for the applicant’s appearance at a scheduled hearing before the ADRB in September 1972.  This document shows that the basis for the discharge recommendation was the applicant’s inability to alter his attitude even after rehabilitation measures were taken.  It indicated that the applicant had been counseled by members of his chain of command on 
11 separation occasions between 7 October 1970 and 15 March 1971; and during this period he had been AWOL three times, he was convicted by a special court-martial, and had accepted NJP three times.  It further indicated that repeated counseling had failed to effect a change in the applicant’s attitude. 

8.  The ADRB service summary on the applicant indicates that on 10 March 1971, the applicant was notified by his unit commander that his separation under the provisions of Army Regulation 635-212, for unfitness (frequent incidents of a discreditable nature with civil and military authorities), was being recommended.  The summary shows that appropriate psychiatric and medical evaluations were completed on the applicant, and he had been counseled on his rights.  It further indicated that on 28 June 1971, the separation authority approved the action and directed that the applicant receive an UD.  

9.  There is a properly constituted separation document (DD Form 214) on file that was authenticated by the applicant with his signature.  This document confirms that the applicant was undesirably discharged on 7 July 1971, under the provisions of Army Regulation 635-212, by reason of unfitness.  It also shows that at the time, the applicant had completed a total of 3 years and 18 days of active military service and had accrued a total of 131 days of time lost due to AWOL and confinement.  

10.  The record shows the applicant was scheduled to personally appear before the ADRB on 12 September 1972, but failed to appear.  There is no other indication in the record that shows he ever reapplied to the ADRB for an upgrade to his discharge.  

11.  Army Regulation (AR) 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

12.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claims that his discharge should be upgraded because his record was generally good, his disciplinary infractions were minor, and that his ability to served was impaired by his youth and immaturity were carefully considered.  However, these factors were not found to be sufficiently mitigating to warrant the requested relief.  

2.  The evidence of record confirms that the applicant was processed for discharge only after he failed to respond to repeated rehabilitative measures taken by members of his chain of command.  

3.  The applicant’s military record is void of a separation packet containing the specific facts and circumstances surrounding his discharge.  However, it does contain a service summary prepared in connection with his scheduled appearance before the ADRB in September 1972.  This document confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  

4.  The record also includes a properly constituted DD Form 214 that was authenticated by the applicant on the date of his separation.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.

5.  Lacking evidence to the contrary, it is determined that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall undistinguished record of service.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was scheduled for review by the ADRB on 12 September 1972.  As a result, the time for him to file a request for correction of any error or injustice to this Board expired on 11 September 1975.  However, he 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

__RJW__  ___MM __  ___RLD   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 J. Wagner
					     CHAIRPERSON	

INDEX

CASE ID	AR2003091818	
SUFFIX		
RECON		
DATE BOARDED	2004/02/19	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/07/07	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  394	144.0133	
2.		
3.		
4.		
5.		
6.