RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 January 2004
         DOCKET NUMBER: AR2003090041


         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. Walter T. Morrison		Member
Ms. Karen Y. Fletcher		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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge under honorable conditions.

2. The applicant states that he was led to believe because he had no infractions on his military record except the infraction for which he was separated, his discharge would automatically be upgraded to a general discharge within 6 months.

3. The applicant provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 7 May 1985. The application submitted in this case is dated 10 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. 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 (ABCMR) should commence on the date of final action by the ADRB. In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

3. On 3 August 1983, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years. On 1 December 1983, he was discharged from the DEP and enlisted in the Regular Army for 4 years, training in military occupational specialty (MOS) 51R (Interior Electrician) and in pay grade E-3. He completed the training requirements and he was awarded MOS 51R and assigned to Fort Rucker, Alabama, on 29 March 1984 with duties in his MOS.

4. On 5 January 1985, the applicant went into an absent without leave (AWOL) status and he remained AWOL until he returned to military control at the Personnel Control Facility, Fort Knox, Kentucky, on 18 March 1985.

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5. On 25 March 1985, court-martial charges were preferred against the applicant for the above AWOL offense. On 26 March 1985, the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of trial by court-martial. He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge. He declined to submit a statement in his own behalf.

6. On 27 March 1985, the applicant's commander recommended approval with a UOTHC discharge. The commander stated the applicant's conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. The commander stated that based on the applicant's previous record, punishment could be expected to have a minimal rehabilitative effect and that he believed a discharge would be in the best interest of all concerned. On the same date, the applicant's intermediate commander also recommended approval with a UOTHC discharge.

7. On 4 April 1985, the approval authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200 and directed that he be separated with a UOTHC discharge in pay grade E-1.

8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was separated on 7 May 1985 under the provisions of chapter 10, AR 635-200 with a UOTHC discharge due to conduct triable by a court-martial. He had completed 1 year, 2 months and 23 days of active military service and he had 73 days of lost time due to being AWOL.

9. In 9 July 1997, the ADRB denied the applicant's request for an upgrade of his discharge.

10. 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 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 was authorized, a UOTHC discharge was considered appropriate.

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DISCUSSION AND CONCLUSIONS:

1. The applicant voluntarily requested an administrative separation under the provisions of chapter 10, Army Regulation 635-200 to avoid trial by court-martial. There is no indication that the request was made under coercion or duress.

2. The United States Army does not have, nor has it ever had, a policy to automatically upgrade discharges or to accept requests for upgrade after a certain amount of time. Each case is decided on its own merits when an applicant submits a DD Form 149 (Application for Correction of Military Record) requesting a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason(s) for discharge, or both, were improper or inequitable. The applicant has failed to provide evidence to support such a change to his record.

3. Records show the applicant was aware of his alleged error or injustice now under consideration on 9 July 1997 after 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 error or injustice expired on 8 July 2000. 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 file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__rvo___ __wtm___ __kyf___ 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.



                  Raymond V. O'Connor, Jr.
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090041
SUFFIX
RECON
DATE BOARDED	20040129
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19850507
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON	A71.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7100
2.
3.
4.
5.
6.