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ARMY | BCMR | CY2003 | 2003090872C070212
Original file (2003090872C070212.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 20 NOVEMBER 2003
         DOCKET NUMBER: AR2003090872


         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. Deborah L. Brantley Senior Analyst


The following members, a quorum, were present:

Ms. Joann L. 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 under other than honorable conditions discharge be upgraded.


2. The applicant states that his service was faithful and meritorious until he and his spouse separated and were not getting along. He states, in effect, that the time has past for his discharge to be upgraded and this injustice corrected.

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

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
21 March 1986. The application submitted in this case is dated 21 April 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. Records available to the Board indicate that the applicant, who was a high school graduate with a GT (general technical) score of 80, entered active duty on 7 September 1976, and reenlisted on 15 May 1979 and again on 17 February 1982. Each of his reenlistments were for a period of 3 years.

4. On 24 June 1982 the applicant extended his 17 February 1982 3-year reenlistment contract an additional 7 months in order to bring his family to Europe. As a result of his extension, his scheduled separation date was established as 16 September 1985.

5. The applicant was promoted to pay grade E-5 in February 1982 and awarded Army Achievement Medals for meritorious achievement in July 1983 and June 1984. He was also awarded two Army Good Conduct Medals. While serving in pay grade E-5, his average performance evaluation report score was 118 when the Army's average score for Soldiers in pay grade E-5 was 106.

6. In November 1984 a local bar to reenlistment was initiated against the applicant after he failed the Primary Leadership Development Course a second time. The bar to reenlistment noted that the applicant was released from the Primary Leadership Development Course for failing the same subject matter. It noted that the applicant had "demonstrated that he cannot pass the first school in the NCOES [Noncommissioned Officer Education System] and consequently should be barred from re-enlistment." The local bar was approved on
9 November 1984.

7. On 12 July 1985 the applicant departed on ordinary leave while still assigned to his unit in Germany. He failed to return from leave and was placed in an AWOL (absent without leave) status on 5 August 1985. He was dropped from the rolls of the Army on 3 September 1985, just 12 days shy of his scheduled separation date.

8. The applicant was apprehended by civilian authorities on 31 January 1986 and returned to military control at Fort Bragg, North Carolina.

9. When charges were preferred the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive. He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law. The applicant indicated to his commander that he had been barred from reenlisting and was having personal problems and because he was unable to cope with the stress of the situation, he went AWOL.

10. The applicant's request was approved and on 21 March 1986 he was discharged under other than honorable conditions in lieu of being tried by court-martial. At the time of his separation he had more than 9 years of creditable service and 41 days of lost time prior to his September 1985 scheduled separation date. He had approximately 80 days of lost time after his scheduled separation date.

11. In May 1994 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

DISCUSSION AND CONCLUSIONS :

1. The applicant's honorable service until less than 2 months prior to his scheduled separation date is noted. However, the applicant has provided no evidence which supports his contention that problems with his spouse was the basis for his being AWOL.
2. The evidence also indicates that civilian authorities apprehended the applicant, which tends to indicate that he had no intention of returning to military control on his own. As a result of the applicant's more than 9 years of service he should have been well aware of the ramifications of being AWOL. His actions should not now be excused because he has come to regret those actions.

3. The mere passage of time is not a sufficient basis to justify upgrading the applicant's discharge as a matter of equity, nor does it outweigh the seriousness of his conduct while in the military.

4. Records show the applicant should have discovered the error or injustice now under consideration in May 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired in May 1997. 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.

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 its 3-year statute of limitations. Therefore, the Board does not excuse the applicant's failure to timely file within the time prescribed by law and this application is denied for that reason.




                  ______________________
                  CHAIRPERSON


INDEX

CASE ID AR2003090872
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20031120
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 110.00
2.
3.
4.
5.
6.


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