RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 September 2005
	DOCKET NUMBER:  AR20050000811 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. Paul M. Smith

Member

Mr. Leonard C. Hassell

Member

	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 characterized as under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states, in effect, that his UOTHC discharge should be upgraded.  He states that since the time limit has elapsed, which is over 15 years, he is now filing for an upgrade of his discharge.  He is full of contrition and in need of assistance.  He was young, made mistakes, is currently homeless, and needs help.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 March 1981, the date of his discharge.  The application submitted in this case is dated 4 January 2005.

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 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's military records show he entered active duty (AD) on 5 July 1977, as a food service specialist, at the age of 22.  

4.  On 23 December 1977, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty on two occasions and for being absent from his appointed place of duty.  His punishment consisted of a forfeiture of pay and 14 days restriction.

5.  He was promoted to pay grade SPC/E-4 on 25 March 1980.  

6.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record), shows that he was AWOL from 4 to 13 June 1980 (10 days), 8 to 13 December 1980 (6 days), from 21 December 1980 to 4 February 1981 (44 days), and confined by civilian authorities on 26 November 1979.  

7.  The facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 12 March 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, in the pay grade of E-1.  He was furnished a UOTHC Discharge Certificate.  He had a total of 3 years, 6 months, and 7 days of creditable service and a total of 61 days of lost time due to AWOL and confinement. 

8.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 6 October 1988.  The ADRB determined that his discharge was proper and equitable and denied his request on 7 March 1991.

9.  Army Regulation 635-200 sets forth the basic authority for 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.  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.

11.  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.

12.  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 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 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.   

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  It is apparent, from the authority for the applicant's discharge, that charges were preferred against the applicant; however, these documents are not available for review and the applicant failed to provide this information to the Board.  There is no evidence, and the applicant has provided no evidence, upon which to base an upgrade of his UOTHC. 

4.  The applicant's contention that he is full of contrition and in need of assistance is noted.  He applied to the ADRB for an upgrade of his discharge 15 years ago and his application was denied.  There is no evidence to show that he reapplied to the ADRB with new or additional evidence to support an upgrade of his discharge.

5.  The applicant contends that he was young and made mistakes; however, the evidence clearly shows that he was 22 years of age on the date of his entry on AD.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

6.  The applicant states that he is currently homeless and in need of assistance.  The Board notes that there are several Veterans organizations available to assist homeless veterans.  The applicant has failed to show that he attempted to seek assistance from such organizations. 




7.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 7 March 1991.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 6 March 1994.  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 FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LE_____  ___LH__  __PMS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____Lester Echols________
          CHAIRPERSON




INDEX

CASE ID
AR20050000811
SUFFIX

RECON

DATE BOARDED
20050929
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19810312
DISCHARGE AUTHORITY
AR 635-200 chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.