RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 December 2005 DOCKET NUMBER: AR20050001475 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. Eric S. Moore Analyst The following members, a quorum, were present: Mr. Richard T. Dunbar Chairperson Mr. James B. Gunlicks Member Mr. Scott W. Faught 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 his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge (HD). 2. The applicant states, in effect, that there is reasonable doubt that he committed all of the offenses charged, that he was coerced into making a bad decision on accepting a chapter 10 discharge, and that his good military record and the recommendations submitted were not taken into consideration. 3. The applicant provides an eight page brief in support of his case. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 22 May 1984, the date of his separation from active duty. The application submitted in this case is dated 18 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 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 in the Regular Army on 3 February 1981 for a period of 4 years. He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 75B (Personnel administration Specialist). 4. On 13 March 1984, court-martial charges were preferred against the applicant charging him with violation of the Uniform Code of Military Justice, Article 81, (Conspiracy) and Article 121 (Larceny) for four specifications of falsifying leave forms and stealing funds totaling about $933.98. The applicant was also charged with threatening to kill another Soldier and other specifications ranging from taking money from Soldiers for compensation of services, altering a public record (leave control log), and the taking of another Soldier's property totally $662.00. 5. On 22 April 1984, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations). The applicant indicated in his request that he was guilty of the charges and/or of lesser included offenses; that he understood he could be discharged UOTHC and furnished an UOTHC discharge; that he could be deprived of many or all Army benefits; that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he could expect to encounter substantial prejudice in civilian life because of an UTHOC discharge. 6. On 23 April 1984, the applicant's commanding officer stated in his recommendation for discharge that he had considered the applicant's job performance and the seriousness of his offenses. He also stated that the statements that the applicant presented did not reflect the opinions of his chain of command. 7. On 14 May 1984, the applicant underwent a mental status evaluation by a medical physician that determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings. He also signed a memo on the same day in which he stated he did not desire a separation medical examination 8. On 7 May 1984, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200, discharge in lieu of trial by court-martial. 9. On 22 May 1984, the applicant was discharged from active duty and was issued an UOTHC discharge based on chapter 10 of Army Regulation 635-200. His DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-200 by reason of "For the Good of the Service-In Lieu of Court Martial" with a characterization of service of UOTHC. The applicant had completed 3 years, 3 months, and 20 days of creditable active military service. 10. As a part of the brief submitted by the applicant, he submitted two statement's that made reference to his personal appearance and that he was a good Soldier. 11. The applicant also provided a statement written on his own behalf that stated, in effect, the reason for his wrongdoing was to make money for him and his family. In closing his statement, he asked that the Army forgive him for the wrong he did. 12. The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge. On 28 October 1987, the ADRB reviewed and denied the applicant's request for upgrade. The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under conditions other than honorable. 13. 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 Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that his overall record of good service supports an upgrade of his discharge and the supporting documents he submitted were also carefully considered. However, the evidence of record, while indicating some periods of good performance, documents no acts of valor, or significant achievement. Further, the applicant earned no individual awards during his active duty tenure. Therefore, it is clear his overall record of service is not sufficiently meritorious to support an upgrade of his discharge at this time. 2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. The record further confirms all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. There is no indication the request was made under coercion or duress. Finally, it is concluded that the applicant’s discharge accurately reflects his overall record of undistinguished service. 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. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 5. Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 28 October 1987. As a result, the time for the applicant to file a request for correction or any error or injustice to this Board expired on 27 October 1990. 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 ___jbg __ ___rtd __ ___swf __ 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. _____Richard T. Dunbar______ CHAIRPERSON INDEX CASE ID AR20050001475 SUFFIX RECON DATE BOARDED 8 December 2005 TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 22 May 1984 DISCHARGE AUTHORITY AR 635-200 . . . . . DISCHARGE REASON For the Good of the Service in Lieu of CM BOARD DECISION DENY REVIEW AUTHORITY MR CHUN ISSUES 1. 110.0200 2. 3. 4. 5. 6.