RECORD OF PROCEEDINGS


	IN THE CASE OF:        
	 

	BOARD DATE:           1 September 2005                   
	DOCKET NUMBER:  AR20050001560


	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. Joseph A. Adriance 

Analyst

The following members, a quorum, were present:


Mr. Stanley Kelley

Chairperson

Ms. Barbara J. Ellis

Member

Mr. Richard T. 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 under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  The applicant states, in effect, that he had three previous honorable discharges during 10 years of service, and the final UOTHC discharge he received does not properly reflect his overall record of service.  

3.  The applicant provides no documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 10 January 1990.  The application submitted in this case is dated 
19 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 military records were not made available to the Board.  This case is being considered using reconstructed records, which primarily consist of the applicant’s separation document (DD Form 214) and a Army Discharge Review Board (ADRB) Case Report & Directive (OSA Form 172A).  

4.  The available evidence shows the applicant initially enlisted in the Regular Army and entered active duty on 8 August 1980.  He reenlisted on 26 October 1982, 11 October 1985 and 13 February 1989.  He was trained in, awarded and served in military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).

5.  The National Personnel Records Center (NPRC) file provided includes three honorable discharge certificates issued to the applicant on 25 October 1982, 
10 October 1985 and 12 February 1989.  These documents confirm the applicant was honorably discharged on these dates, for the purpose of immediate reenlistment.  
6.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing.  The record does contain a properly constituted DD Form 214 that identifies the authority and reason for his separation.  This document confirms that on 10 January 1990, he was separated under the provisions of chapter 10, 
Army Regulation 635-200, for the good of the service, in lieu of trial by 
court-martial. 

7.  The applicant’s DD Form 214 also shows he received an UOTHC discharge and that he completed a total of 9 years, 5 months and 3 days of active military service.  It also shows that during his active duty tenure, he received the Army Good Conduct Medal (2nd Award), Army Achievement Medal 3rd Oak Leaf Cluster, Overseas Service Ribbon, Expert Qualification Badge with Rifle Bar, Marksman Qualification Badge with Pistol Bar and Sharpshooter Qualification Badge with Grenade Bar.  

8.  On 4 March 1998, after careful consideration of his case, the ADRB concluded the applicant’s discharge was proper and equitable and it unanimously voted to deny his request for an upgrade of his discharge.  

9.  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.  

10.  Title 10 of the United States 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 United States 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 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’s contention that his final discharge does not accurately reflect his overall 10-year record of service was carefully considered.  However, the fact he was honorably discharged for the purpose of immediate reenlistment on three prior occasions is adequately documented by the three honorable discharge certificates on file.  As a result, this factor is not sufficiently migrating to warrant an upgrade of the discharge under review.  

2.  The available evidence does not include a separation packet containing the  specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 4 March 1998.  As a result, the time for him to file a request for correction of any error or injustice to this Board expired on 3 March 2001.  However, he 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SK __  ___BJE__  __RTD__  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
AR20050001560
SUFFIX

RECON

DATE BOARDED
2005/09/01
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1990/01/10
DISCHARGE AUTHORITY
AR 635-200 C10
DISCHARGE REASON
In Lieu of C-M
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.  1898
110.0000
2.

3.

4.

5.

6.