RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:          1 September 2005    
	DOCKET NUMBER:  AR20050001085


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Stanley Kelley

Chairperson

Ms. Barbara Ellis

Member

Mr. Richard Dunbar

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 be upgraded.

2.  The applicant states he went in to the service to get away because he could not handle his parents getting a divorce.  He contends that he was under a hardship (wasn’t thinking correctly) and that he was very confused and went in to the Army for the wrong reasons.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged injustice which occurred on 6 March 1981.  The application submitted in this case is dated 12 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 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’s military records are not available to the Board.  This case is being considered using reconstructed records, which primarily consist of his DD Form 214.  

4.  The applicant enlisted on 20 February 1980 and trained as a military policeman.

5.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 shows that he was discharged on 6 March 1981 with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 10 months and 22 days of creditable active service with approximately 57 days of lost time.

6.  There is no evidence in the available records which shows the applicant applied for a hardship discharge.
7.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

8.  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.

9.  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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that the applicant requested a hardship discharge. 

2.  Family problems are not grounds for upgrading a discharge.  

3.  In the absence of evidence to the contrary, it must be presumed that 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.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

4.  Records show the applicant should have discovered the alleged injustice now under consideration on 6 March 1981; therefore, the time for the applicant to file a request for correction of any injustice expired on 5 March 1984.  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_____  BE_____  RD_____  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
AR20050001085
SUFFIX

RECON

DATE BOARDED
20050901
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19810306
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.