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ARMY | BCMR | CY2003 | 2003089185C070403
Original file (2003089185C070403.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS


         IN THE CASE OF:
        


         BOARD DATE: 20 November 2003
         DOCKET NUMBER: AR2003089185


         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. G. E. Vandenberg Analyst


The following members, a quorum, were present:

Ms. Joann H. Langston Chairperson
Ms. Linda D. Simmons 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 that his discharge be upgraded.


2. The applicant states that the punishment he received was too harsh and more severe that most people got for the same offense. He states that it was too severe by today’s standards and that he wasn’t properly represented.

3. He states that the date of discovery was 1979, and the statute of limitations should be waived because his counsel advised him that he could request an upgrade after 10 years.

4. The applicant provides no evidence, contentions, or arguments beyond his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 12 November 1980 the date of his discharge. The application submitted in this case is dated 17 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 the 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 entered active duty on 14 November 1979; he successfully completed training, and was assigned to duty in Germany.

4. On 12 August 1980, the applicant was charged with violations of the Uniform Code of Military Justice (UCMJ) for four separate incidents of assault and/or robbery on a civilian and three soldiers. The specific charges were:

a. Article 80, two specifications of attempted robbery by means of force and violence;

b.       Article 81, conspiring to commit robbery by means of force and violence;

c.       Article 122, two specifications of robbery using of force and violence; and

d.       Article 128, four specifications of assault in conjunction with robbery.

5. On 25 September 1980 his command recommended that he be tried by a general court-martial.

6. On 11 September 1980, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulations 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice and that he was guilty of the stipulated offenses or lesser-included charges. He acknowledged he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge. He was notified that there is no automatic upgrading or review of a less than honorable discharge.

7. The discharge authority approved the request and directed that he be reduced to the lowest enlisted grade and receive an UOTHC discharge.

8. The applicant was discharged on 12 November 1980. He had 11 months and 29 days of creditable service.

9. Army Regulation (AR) 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 punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

10. The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge and confinement is authorized for offenses under Articles 80, 81, 122, and 128.

DISCUSSION AND CONCLUSIONS :

1. The applicant has provided no evidence that he was not properly advised of his options and the consequences of requesting discharge under AR 635-200, chapter 10.

2. Had the applicant gone to court-martial the total maximum punishment he was facing, if found guilty on any charges, was a Federal conviction with forfeiture of all pay and allowances, a dishonorable discharge, and confinement. His sentence for any single charge or specification would have been significantly harsher than the administrative discharge under other than honorable conditions he received.

3. The applicant has provided no evidence that he was treated harsher or that his punishment was more severe than anyone else accused of the same crimes.

4. Records show that the applicant should have discovered the injustice now under consideration on 12 November 1980. Thus, the applicant should have filed an application with the ABCMR within 3 years from 12 November 1980. However, the applicant did not do so and has not provided a compelling explanation justifying failure to file within the 3-year statute of limitations.


BOARD VOTE :

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ JHL ___ ___ LDS _ ___ 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 or to excuse the applicant’s failure to file this application with the ABCMR within the 3-year statute of limitations. Therefore, the Board does not excuse the applicant’s failure to timely file within the time proscribed by law and this application is denied for that reason.




                  ______________________
                  CHAIRPERSON
24 November 2003


MEMORANDUM FOR RECORD

SUBJECT: ABCMR Record of Proceedings


1. Reference ABCMR Case Numbers AR2003089185, AR2003090926, AR2003085199, AR2003098945, AR2003090923, AR2003090057, AR2003092852, AR2003089184, AR2003086983, AR2003090233, AR2003087428, AR2003091296, AR2003086564, AR2003090872, AR2003086107, AR2003089598, AR2003088131, AR2003084919, AR2003093189.


2. This certifies the ABCMR panel vote of referenced cases on 20 November 2003.

3. I disagree with so much of the BOARD DETERMINATION/RECOMMENDATION, which states that “the Board does not excuse the applicant’s failure to timely file within the time proscribed by law and this application is denied for that reason.” I would deny relief solely on the basis that the applicant has failed to show error or injustice. This represents a minority opinion.



                                                      Signed
                                                      Joann H. Langston
                                                      Chairperson


INDEX

CASE ID AR2003089185
SUFFIX
RECON
DATE BOARDED 20031220
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1. 145
2.
3.
4.
5.
6.



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