RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 April 2004
         DOCKET NUMBER: AR2004100818


         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
Mrs. Phyllis M. Perkins		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Gail J. Wire		Member
Mr. Williams D. Powers		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 discharge (UOTHC) be upgraded to an honorable discharge.

2. The applicant states that he was close to finishing his tour and believes it was unfair and an injustice to give him a bad discharge. He further states that he was having marital problems and received no help from the military.

3. The applicant provides a self-authored statement; a letter from his employer, dated 26 June 2003; a letter from a minister dated 18 July 2003; a letter from his Mother, undated; and a letter from Army Review Boards Agency Support Division, St. Louis, Missouri, dated 22 October 2003.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice, which occurred on 22 March 1998, the date of his separation from active duty. The application submitted in this case is dated 29 October 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. The applicant enlisted in the Regular Army on 3 April 1986 for a period of
3 years. He completed training and was awarded the military occupational specialty 13B10 (Cannon Crewman).

4. The applicant departed absent without leave (AWOL) effective 17 January 1989 and remained AWOL until 6 February 1990 when he surrendered to military authorities at Fort Hamilton, New York. On 6 February 1990, charges were preferred against the applicant for AWOL.

5. On 9 February 1990, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provision of Army Regulation 635-200, chapter 10. The applicant indicated in his request that he understood he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. Additionally, he elected not to submit a statement in his own behalf.

6. On 15 February 1990, the captain in command of Company A, U. S. Army Personnel Control Facility at Fort Dix, New Jersey, recommended the applicant's discharge under other than honorable conditions.

7. On 7 March 1990, the commander of Headquarters Command, U.S. Army Training Center and Fort Dix, approved the applicant's request for discharge and directed that he be discharged under other than honorable conditions.

8. Accordingly, the applicant was discharged under other than honorable conditions on 22 March 1990 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial. He had served on active duty from 23 June 1986 to 23 March 1990 and had over one year of lost time.

9. On 12 May 1999, the Army Discharge Review Board (ADRB) considered the applicant's request to upgrade his discharge. The ADRB unanimously determined that the discharge was proper and equitable and that the discharge was properly characterized as UOTHC.

10. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 10 of this regulation provides, in pertinent part, that a member who had committed an offense of offenses for which the authorized punishment included a punitive discharge may at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate.

11. Army Regulation 635-200, paragraph 1-21L, states that the general court-martial convening authority or higher authority at installations having personnel control facilities may delegate the authority to approve separations for the good of the service (chapter 10) to the commander exercising special court-martial convening authority over the soldier who submitted the request for discharge. This authority is limited to cases in which the soldier has been AWOL for more than 30 days, has been dropped from the rolls of his or her unit as absent in desertion, has been returned to military control, currently is at the personnel control facility, and is charged only with AWOL for more than 30 days.

12. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

13. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

14. 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. Therefore the time for the applicant to file a request for correction of an error or injustice expired on 11 May 2002.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends that his discharge should be upgraded. He believes he was unfairly discharged because he was near the end of his enlistment and had marital problems.

2. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

3. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4. Based on his lengthy period of AWOL (over one year), the applicant’s service did not meet the standards of acceptable conduct and performance of duty for Army personnel, and his military record is not considered ”satisfactory.” Therefore, he is not entitled to an honorable discharge or to a general discharge.

5. The applicant’s contentions that he was near the end of his enlistment and was having martial problems are not bases for upgrading his discharge, particularly since there is no evidence the applicant sought assistance from military authorities for his martial or other problems prior to going AWOL. Records show the applicant did not raise these matters during separation processing and he elected not to make a statement in his own behalf.

6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 May 1999, therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 May 2002. 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

_GLW__ _RJW____ _WDP___ DENY APPLICATION

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.




                  Raymond J. Wagner____
                  CHAIRPERSON

INDEX

CASE ID	AR2004100818
SUFFIX
RECON
DATE BOARDED	20040408
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144
2.
3.
4.
5.
6.