RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
		

	BOARD DATE:	  26 July 2005
	DOCKET NUMBER:  AR20050001552 


	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. Stacy R. Abrams

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Patrick H. McGann Jr.

Member

Mr. Leonard G. 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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he was convicted felon, he has been incarcerated twice, his health is poor, and he is unemployable.  He requests his discharge be upgraded for the benefit of receiving free benefits.

3.  The applicant requests to be seen by a traveling board in Chicago, Illinois. 

4.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation of 8 August 1973 and self-authored statement on his behalf.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 August 1973, the date of his separation from active duty.  The application submitted in this case is dated 20 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 service personnel records show he enlisted in the Regular Army on 16 June 1972 for a period of 4 years.  He successfully completed basic training and advanced individual training and was awarded the military occupational specialty 11D (armor reconnaissance specialist).

4.  On 1 December 1972, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 2 October 1972 through
9 October 1972.  His punishment consisted of a forfeiture of $66.00 for one month and restriction to the company area for 14 days.

5.  On 29 May 1973, nonjudicial punishment was imposed against the applicant for being (AWOL) from 14 April 1973 through 18 May 1973. His punishment consisted of a forfeiture of $170.00 for two months and extra duty for 
30 days.

6.  A DD Form 458 (Charge Sheet), dated 11 July 1973, shows applicant was referred to trial by Special Court-Martial for being AWOL from 8 June 1973 through 14 June 1973 and from 22 June 1973 through 30 June 1973.

7.  There are no records available which show the applicant’s separation processing.  However, his records contain a DD Form 214, with separation date of 8 August 1973.  This DD Form 214 shows that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations) for the good of the service.

8.  Records show the applicant was discharged under other than honorable conditions on 19 April 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 31 March 1978 through 19 April 1979 and had 56 days of lost time.

9.  The records show that on 15 April 1982, the applicant submitted his application to the Army Discharge Review Board (ADRB) for upgrade of his discharge.

10.  On 22 December 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.

11.  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.  An undesirable discharge was normally considered appropriate. 




12.  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.

13.  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.

14.  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 requests his under other than honorable conditions discharge be upgraded because he has been incarcerated twice, is in poor health and is unemployable.  He further states, he is in need of free benefits.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for medical or other benefits.  Therefore, there is no basis for upgrading his discharge.

2.  The discharge packet is not available in the applicant’s personnel records.  However, in the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected through the separation process.

3.  Army Regulation clearly provides that military discharges are based on the quality of the Soldier’s military service in accordance with published standards.

4.   The applicant's records show the applicant was AWOL on four different occasions totaling over 56 days of lost time.  His record of service also shows that the applicant completed only completed 11 months and 27 days of his required 48 months of service.  Therefore, based on his record of indiscipline, the applicant is not entitled to an honorable discharge.

5.  The applicant’s acts of misconduct are not acceptable conduct or performance which merits an honorable discharge.  In view of his offenses and limited service his service was also not satisfactory and he is, therefore, not entitled to a general discharge.

6.  The applicant indicated that he would like to be seen by a traveling board in Chicago, Illinois; however, the ABCMR conducts all of its hearing in Washington, DC.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 December 1982, the date that the ADRB denied his request to upgrade his discharge.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
21 December 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

_LDS___  _LGH___  __PHM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.




_       _Linda D. Simmons________
          CHAIRPERSON




INDEX

CASE ID
AR20050001552
SUFFIX

RECON

DATE BOARDED
20050726
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19730808
DISCHARGE AUTHORITY
AR635-200
DISCHARGE REASON
Chapter 10
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
144
2.

3.

4.

5.

6.