RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
		

	BOARD DATE:	  21 July 2005
	DOCKET NUMBER:  AR20050000979 


	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. Yvonne Foskey

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Robert J. Osborn II.

Member

Ms. Brenda K. Koch

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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that, at the time he was on active duty, he was in bad mental shape and that his heart and mind were not with him due to family hardships.  He also states that these hardships led him to drink heavily and take drugs. The applicant further states that, since he has been out of the service his life has been in shambles and he has faced hardship after hardship.  He states that he no longer drinks heavily or does drugs.  The applicant states, in effect that he would like to be reinstated and serve out the rest of his time enlisted to fight for his country like his father, grandfather, brother and uncle.  He further states he would feel proud of himself again and that his mother would rest easier in her grave if he was reinstated.

3.  The applicant provides an undated self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 June 1979, the date of his separation from active duty.  The application submitted in this case is dated 29 November 2004.

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 service personnel records show that he enlisted in the Army National Guard on 3 February 1975 for a period of 6 years.  At the time of his enlistment the applicant was given a DMNA Form 38 (Orientation Statement) as required by Army Regulation 135-91, for the purpose of providing facts about his Ready Reserve Obligation.  The DMNA Form 38 stated that the applicant could be ordered to active duty if he failed to satisfactorily participate in scheduled unit training and accrued in any 1 year period a total of 5 unexcused absences.  On
3 February 1975, the applicant signed the statement acknowledging that he had been counseled.
4.  He successfully completed advanced individual training and was awarded the military occupational specialty 31V (Field Radio Mechanic).

5.  Records show that a Letter of Instruction-Unexcused Absence was mailed to the applicant on 18 September 1977 for failure to report to drill.

6.  On 6 November 1977, Notice of Unsatisfactory Participation and Right to Appeal Involuntary Active Duty was sent to applicant and he acknowledged receipt.

7.  On 14 February 1978, in compliance with Army Regulation 135-91, the unit commander requested that the applicant be ordered to active duty for accruing 
five unexcused absences.

8.  Fort George G. Meade, Maryland Order Number 100-31, dated 24 May 1978 relieved the applicant from Reserve Component assignment and ordered him to active duty in accordance with Army Regulation 135-91.  The applicant was ordered to report to Fort Dix, New Jersey on 11 July 1978 with an active duty commitment period of 18 months and 3 days.  

9.  On 2 October 1978, nonjudicial punishment was imposed against the applicant for failure to go to appointed place of duty on 10 September 1978.  His punishment consisted of reduction from private/pay grade E-2 to private/pay grade E-1 (suspended until 30 December 1978), forfeiture of $90.00 for period of 1 month, and 14 days restriction to the company area, mess hall, chapel of choice and areas required for duty.

10.  On 22 November 1978, the suspension until 30 December 1978 of the applicant’s reduction to private pay grade E-1 were vacated.  

11.  On 29 November 1978, the applicant’s battalion commander submitted DA Form 4187 (suspension of favorable action) under Procedure 2-35, DA Pam 600-8 authorizing a Flag “P”.  The applicant was under a suspended reduction blocking his promotion to private first class pay/ pay grade E-3.  

12.  Records show that on 22 January 1979, the company commander prepared DA Form 4187 (Personnel Action) for which it shows the applicant was absent without leave on 20 January 1979.

13  On 27 February 1979, the company commander prepared DA Form 4187 removing the applicant from the rolls in accordance with Army Regulation 
630-10, paragraph 3-2c(8).
14.  Records show that on 28 February 1979, the applicant was dropped from rolls on 27 February 1979.

15.  On 14 March 1979, DA Form 4187 was prepared stating that the applicant was apprehended by civilian authorities and returned to military control on 
7 March 1979.  The applicant was transported and assigned to the Personnel Control Facility at Fort Carson, Colorado pending disposition of military charges. 

16.   On 19 March 1979, the applicant consulted counsel and submitted a request for discharge for the good of the service under the provisions 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 of 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.  He elected to not submit a statement in his own behalf.

17.  On 20 March 1979, the applicant submitted a self-authored letter requesting reassignment to Fort Dix, New Jersey or Fort Hamilton, New York.  He stated that this request for transfer was due to his wife being very ill with leukemia which made her unable to care for the children, or able to work.  He further stated that his wife’s health was putting a strain on their marriage and that he was in need of assistance and crisis counseling.

18.  On 20 March 1979, the applicant submitted a request for five days of excess leave.  The applicant stated that he was requesting excess leave because he felt that he should not have to serve honorably while awaiting discharge for the good of the service.  He further stated that he had family problems to take care of at home.  He acknowledged that he understood that he would not receive any pay and allowances or accrue any leave during this period.

19.  Records show that on 20 March 1979, the applicant completed his separation physical and was cleared for separation.

20.  On 26 March 1979, the commander of U.S. Army Personnel Control Facility, Fort Carson, Colorado, recommended approval of the applicant’s discharge under other than honorable conditions.

21.  On 29 March 1979, the commander of Headquarters 43rd Support Group, Fort Carson, Colorado, recommended approval of applicant’s request for discharge for the good of the service and discharge under other than honorable conditions.  

22.  On 26 April 1979, the major general in command of the 4th Infantry Division at Fort Carson, Colorado, approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.

23.  Records show the applicant was discharged under other than honorable conditions on 26 June 1979 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served on active duty from 11 July 1978 to 26 June 1979 and had 46 days of lost time.

24.  The records show that on 17 June 1980 the applicant submitted his application to the Army Discharge Review Board (ADRB) for upgrade of his discharge.
 
25.  On 7 April 1982, the 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 under other than honorable conditions.

26.  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 is authorized, a discharge under other than honorable conditions is normally considered appropriate.

27.  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.


28.  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.

29  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.  

2.  Trial by court-martial was warranted by the gravity of the offense charged.

3.  Records show the applicant voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial.  In so doing, the applicant admitted guilt to the offense charged and accepted discharge under other than honorable conditions in lieu of trial by court-martial.  

4.  Evidence of record shows, the applicant's request for discharge was voluntary, administratively correct, and in compliance with applicable regulations.  
5.  Evidence of record shows, that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.



6.  The applicant’s record of service shows nonjudicial punishment for failure to be at his appointed place of duty.  Leniency was shown by the company commander when he suspended the applicant’s reduction.  However, the applicant committed further undisclosed indiscipline which resulted in the suspended reduction being vacated.  Furthermore, the applicant completed only 10 months of his required 18 months of service and accrued 46 days of absent without leave.  In view of these facts, the applicant’s service was not satisfactory and he is, therefore not entitled to a general discharge.

7.  Army regulation clearly provides that military discharges are based on the quality of the Soldier’s military service in accordance with published standards.  The applicant’s acts of indiscipline and 46 days of AWOL are not acceptable conduct or performance which merit for an honorable discharge.  

8.  The applicant contends that his discharge should be upgraded because his indiscipline while serving in the military was caused by family hardships.  However, there is no evidence of record which shows that he sought help from his chain of command or other sources until after he had been absent without leave for 46 days and apprehended. Therefore, this contention is not sufficient as a basis to upgrade his discharge.

9.  The applicant contends that he no longer drinks or takes drugs and would like to be reinstated in the Army.  Based on the applicant’s current status, he should consult with a military recruiter regarding his further eligibility for military service.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 April 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 April 1985.  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

__BK__  __JI___  __RJO__         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.




John Infante
                     CHAIRPERSON



INDEX


CASE ID
AR20050000979
SUFFIX

RECON

DATE BOARDED
20050721
TYPE OF DISCHARGE
 UOTHC
DATE OF DISCHARGE
1979/06/26
DISCHARGE AUTHORITY
AR635-200 Chapter 10 . . . . .  
DISCHARGE REASON

BOARD DECISION
 DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.