RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 December 2003
         DOCKET NUMBER: AR2003088854


         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Eloise C. Prendergast		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his under other than honorable conditions (UOTHC) discharge be upgraded to that of a general discharge (GD) under honorable conditions.

2. The applicant states, in essence, that at the time of his enlistment, he was 19 years of age, he drank a lot and he was young and stupid, but he does not deserve the UOTHC discharge that he received.

3. The applicant provides nothing in support of his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 22 October 1980. The application submitted in this case is dated 18 March 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. On 16 August 1979, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP). On 18 September 1979, at age 18, he was separated from the DEP and he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 19D (Cavalry Scout). He completed the training requirements and he was awarded MOS 19D. On 15 January 1980, he was assigned to Fort Lewis, Washington with duties associated with his MOS.

4. Nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, was imposed against the applicant on four separate occasions. On 25 February 1980 and 10 April 1980, NJP was imposed against him for failure to go to his appointed place of duty at the time prescribed on 8 February and 21 March 1980. On 24 March, NJP was imposed against him for failure to repair. The NJP proceedings are no longer contained in the available record, thus his punishments are unknown. On 18 June 1980, NJP was imposed against him for being absent without leave (AWOL) from 6-12 June 1980. His punishment included the forfeiture of pay, restriction, extra duty and 14 days' correctional custody at the Correctional Custody Facility.

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5. On 25 July 1980, a bar to reenlistment was approved against the applicant. The bases cited for the bar were: the above-listed NJP's; the applicant was consistently late for duty; that his performance was unacceptable; that his personal appearance was poor; that he was totally unable or unwilling to follow instructions; that he was disinterested and uncooperative; and that he was unsuitable for further service and not in the Army's best interest to retain him.

6. The applicant left his unit again in an AWOL status from 28 July to 25 September 1980 when he was apprehended by civil authorities in Seattle, Washington and returned to military control at the Personnel Holding Detachment, Fort Lewis.

7. On 29 September 1980, court-martial charges were preferred against the applicant for the above period of AWOL. On 1 October 1980, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. He was advised that he could receive a UOTHC discharge. He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge. The applicant declined to submit a statement in his own behalf.

8. On 16 October 1980, the separation authority approved the request and directed that the applicant be separated with a UOTHC discharge. The approval authority stated that he believed the applicant had poor potential for rehabilitation and that the interests of justice would not be served by confinement adjudged by court-martial.

9. On 17 October 1980, the applicant was placed on excess leave pending approval of his request for separation.

10. On 22 October 1980, the applicant was separated in absentia with a UOTHC discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. He had completed 10 months, and 7 days of active military service and he had 88 days of lost time due to being AWOL and in pre-trial confinement.

11. On 24 March 1983, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized

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punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, a UOTHC discharge is considered appropriate.

DISCUSSION AND CONCLUSIONS:

1. The applicant's voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

2. Both the reason for discharge and the characterization of service were appropriate considering the facts surrounding the applicant's discharge.

3. At the time of the applicant's request for separation, he acknowledged he understood the consequence of receiving a UOTHC discharge.

4. The applicant met entrance qualification standards, to include age, and there is no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

5. Records show the applicant was aware of what he perceives to be an injustice on 24 March 1983, at the time the ADRB denied his request for an upgrade of his discharge. Therefore, the time for the applicant to file a request for correction of any injustice expired on 24 March 1986, 3 years after the ADRB rendered its decision. However, the applicant did not file within that 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

__mdm___ __rjw___ __ecp___ DENY APPLICATION

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.



                           Mark D. Manning
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088854
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19801022
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.