RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 SEPTEMBER 2005 DOCKET NUMBER: AR20050001211 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. Jessie B. Strickland Analyst The following members, a quorum, were present: Mr. Lester Echols Chairperson Mr. Paul Smith Member Mr. Leonard Hassell 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 that his discharge under other than honorable conditions be upgraded to honorable. 2. The applicant states, in effect, that he desires his discharge to be upgraded. 3. The applicant provides no additional documents with his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 25 January 1980. The application submitted in this case is dated 5 January 2005. 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. He enlisted in Newark, New Jersey, on 9 July 1976, for a period of 4 years and training as a wheel vehicle mechanic. He completed his training at Fort Dix, New Jersey, and was transferred to Germany on 19 November 1976. 4. On 12 April 1977, nonjudicial punishment (NJP) was imposed against him for dereliction in the performance of his duties in that he negligently failed to replace the wheel bearing locking nut cotter pin on a vehicle he worked on and it resulted in the wheel coming off when in use. His punishment consisted of a forfeiture of pay and extra duty. 5. On 2 February 1978, NJP was imposed against him for being disrespectful in language towards a superior noncommissioned officer (NCO). His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty. 6. On 15 February 1978, NJP was again imposed against him for being disrespectful towards a superior NCO. His punishment consisted of a reduction to the pay grade of E-1 and extra duty. 7. On 30 March 1979, NJP was imposed against him for being disrespectful in language towards a superior NCO. His punishment consisted of a reduction to the pay grade of E-1 (suspended for 1 month), a forfeiture of pay and extra duty. 8. He departed Germany on 22 April 1979 and was transferred to Fort Hood, Texas, where he was assigned to a signal company. 9. On 8 August 1979, NJP was imposed against him for being absent without leave (AWOL) from 18 July to 19 July 1979. His punishment consisted of a reduction to the pay grade of E-2, restriction for 14 days (both suspended for 60 days), a forfeiture of pay, and extra duty. The suspended portion of his sentence was vacated on 21 August 1979. 10. On 1 October 1979, he went AWOL and remained absent in a deserter status until he surrendered to military authorities at Fort Dix on 6 November 1979, where charges were preferred against him for the AWOL offense. At the time of his return to military control he indicated that he went AWOL because he did not get along with his platoon sergeant who picked on him because he (the applicant) was white. He also stated that he wanted nothing further to do with the Army. 11. On 16 November 1979, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further declined to submit a statement or explanation in his own behalf. 12. The appropriate authority (a major general) approved his request on 15 December 1979 and directed that he be discharged under other than honorable conditions. 13. Accordingly, he was discharged under other than honorable conditions on 25 January 1980, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 3 years, 5 months and 12 days of total active service and had 35 days of lost time due to AWOL. 14. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. 2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. 3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. 4. 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. 5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 January 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 January 1983. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____LE__ ___PS __ ___LH __ 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. ____Lester Echols__________________ CHAIRPERSON INDEX CASE ID AR20050001211 SUFFIX RECON DATE BOARDED 20050929 TYPE OF DISCHARGE (UOTHC) DATE OF DISCHARGE 1980/01/25 DISCHARGE AUTHORITY AR 635-200/ch10 . . . . . DISCHARGE REASON Gd of svc BOARD DECISION (DENY) REVIEW AUTHORITY AR 15-185 ISSUES 1.144.7000 689/a70.00 2. 3. 4. 5. 6.