RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2005
	DOCKET NUMBER:  AR20050000926 


	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. Eric S. Moore

Analyst

The following members, a quorum, were present:


Mr. Stanley Kelley

Chairperson

Mr. John T. Meixell

Member

Mr. Robert L. Duecaster

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, in effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge (HD).

2.  The applicant states that he was forced to accept a possible UOTHC discharge to halt continuing harassment by his unit.  

3.  The applicant provides a statement in his own behalf, two pages of his Personnel Qualification Record, a copy of his court martial proceedings, and a copy of his request for discharge for the good of the service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 May 1978, the date of his discharge from active duty.  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 enlisted in the Regular Army on 23 August 1974 for a period of 4 years.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).

4.  On 15 August 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for showing disrespect to a noncommissioned officer and later to a senior noncommissioned officer. His punishment consisted of reduction to of private/ (E-2) (suspended for a period of 30 days), and forfeiture of 7 days pay.

5.  On 11 January 1978, a general court-martial (GCM) found the applicant guilty, contrary to his pleas, of violating Article 117 of the UCMJ by using provoking words and violating Article 134 drunk and disorderly conduct and communicating a threat.  

6.  The resultant sentence included hard labor without confinement for a period of three months, forfeiture of $150.00 per month for six months, and the reduction to the rank of private one (E-1).

7.  On 22 March 1978, the court-martial convening authority approved the findings and the sentence.

8.  On 10 April 1978, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he acknowledges that he is guilty of the charges and/or of lesser included offenses, that he understood he could be discharged under other than honorable conditions and furnished an UOTHC Discharge Certificate; that he could be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life because of an UOTHC Discharge. 

9  On 24 April 1978, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200, discharge in lieu of trial by court-martial.  On 8 May 1978, he was discharged with an UOTHC discharge, in pay grade E-1.  He had completed 3 years, 8 months, and 16 days of creditable active service.

10.  On 10 June 1980, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.  The Board determined that the discharge was properly characterized as under other than honorable conditions.

11.  The applicant submits a statement on his own behalf that states, in effect, that he had only three months remaining in the service when he was questioned by the Army CID for the possession of hashish, so in his attempt to keep from being extended for a false charge and his life becoming a holy hell he chose to accept the chapter 10.

12.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

13.  Title 10, U.S. Code, section 1552(b), provides that applications for corrections 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 Board 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.  The applicant stated that he accepted the chapter 10 in an attempt to keep from being extended for trial on a false charge and his life becoming a holy hell.  He had the opportunity to make statements in his own behalf at the time.  He failed to take advantage of this opportunity.

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.  There is no indication the request was made under coercion or duress.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 10 June 1980.  As a result, the time for the applicant to file a request for correction or any error or injustice to this Board expired on 9 June 1983.  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 timely file in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___sk___  ___jtm __  __rld ____  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.




_____Stanley Kelley________
          CHAIRPERSON




INDEX

CASE ID
AR20050000926
SUFFIX

RECON

DATE BOARDED
20051115
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
8 May 1978
DISCHARGE AUTHORITY
AR 635-200 . . . . .  
DISCHARGE REASON
For the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
MR CHUN
ISSUES         1.
144.0400
2.

3.

4.

5.

6.