RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 March 2007 DOCKET NUMBER: AR20060012548 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. Gerard W. Schwartz Acting Director Mr. W. W. Osborn, Jr. Analyst The following members, a quorum, were present: Mr. Lester Echols Chairperson Ms. Linda M. Barker Member Mr. Michael J. Flynn Member 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 the reason for his discharge be changed. 2. The applicant states, in effect, the narrative reason for separation, “Misconduct: Frequent Incidents of a Discreditable Nature with Civil or Military Authorities,” unjustly condemns him for accusations he has been cleared of and as a result he was given an honorable discharge. 3. The applicant provides no documents to substantiate his case. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 6 August 1981, the date of the Army Discharge Review Board (ADRB) decision to upgrade the discharge. The application submitted in this case is dated 7 June 2006. 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 limitations 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 and entered active duty on 30 September 1970. He completed training as a medical corpsman and was stationed in Vietnam in May 1971. In January 1972 he was returned from Vietnam. 4. He accumulated four nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice for offenses of sleeping on guard duty, absence without leave, driving while intoxicated, disobedience and disrespect. On 25 May 1973, following a personal appearance with counsel before a board of officers the applicant was separated with an undesirable discharge due to frequent incidents of a discreditable nature with civil or military authorities. 5. On 6 August 1981 the ADRB considered the case. The ADRB found that during the board of officers hearing the commanding officer testified that he ordered the applicant to undergo a urine analysis that resulted in a positive finding. This evidence was exempt and should not have been introduced. By a unanimous vote, the ADRB concluded the discharge was proper. However, the characterization was inequitable as a result of the commander’s testimony. “The sustentative rule applied and mandated an Honorable Discharge." The ADRB panel voted unanimously to grant him an honorable discharge. 6. Army Regulation 635-200, sets 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 type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. The discharge was recharacterized by the ADRB based on a technicality that precluded the consideration of the results of a compelled urinalysis in the characterization of a discharge. 2. That decision did not extend to the reason for the discharge which was and is appropriate. The applicant's behavior did show evidence of misconduct by committing frequent incidents of a discreditable nature with civil or military authorities. 3. 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. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 August 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 August 1984. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __LE ___ __MJF___ __LMB __ 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 this 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 no evidence provided which shows 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. ______________________ CHAIRPERSON INDEX CASE ID AR20060012548 SUFFIX RECON DATE BOARDED 20070329 TYPE OF DISCHARGE HD DATE OF DISCHARGE 19730525 DISCHARGE AUTHORITY AR 635-200, CH 12 . . . . . DISCHARGE REASON BOARD DECISION NC REVIEW AUTHORITY ISSUES 1. A94.05 2. 3. 4. 5. 6.