RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 September 2005
	DOCKET NUMBER:  AR20050001528 


	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. Judy L. Blanchard

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. Eric N. Andersen

Member

Ms. Carol A. Kornhoff

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 be upgraded. 

2.  The applicant states, in effect, that he tried to adapt to military standard of living, however, he could never accept the change.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice, which occurred on 23 August 1979, the date he was separated from active duty.  The application submitted in this case is dated 10 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 record shows he enlisted in the Regular Army and entered active duty on 3 November 1978, for a period of 4 years.  He was trained in, awarded and served in military occupational specialty (MOS) 11C10 (Indirect Fire Infantryman).  

4.  On 2 May 1979, the applicant was reported for being absent without leave 
(AWOL).  He surrendered to military authorities on 26 July 1979.  

5.  On 26 July 1979, court-martial charges were preferred against the applicant for being AWOL from 2 May to 26 July 1979.  

6.  On 1 August 1979, the applicant was found physically fit for retention.

7.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge UOTHC and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  In his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He also stated his understanding that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UOTHC.  

8.  On 14 August 1979, the separation authority approved the applicant’s request for discharge and directed that he receive a Discharge Certificate Under Other Than Honorable Conditions.  On 23 August 1979, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued confirms he completed 6 months and 27 days of creditable active military service and accrued 84 days of time lost due to AWOL.  

9.  On 16 September 1982, the Army Discharge Review Board (ADRB) determined that the applicant’s discharge was proper and equitable and it voted to deny the applicant’s request for an upgrade of his discharge.  

10.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of a Discharge Certificate UOTHC.

11.  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 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’s contentions that he could not adapt to military life was carefully considered and found to have no merit in this case.  There is no evidence nor has the applicant provided any evidence to show that he asked for help at any time before deciding to go AWOL.  Therefore, given the circumstances in this case and his overall undistinguished record of service, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process and his discharge accurately reflects his overall record of short and undistinguished service.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 16 September 1982.  As a result, the time for him to file a request for correction of any error or injustice to this Board expired on 15 September 1985.  However, he failed to 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

___JS  __  __ENA __  __CAK__  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 Slone______
          CHAIRPERSON




INDEX

CASE ID
AR20050001528
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050915
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.