RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 October 2005
	DOCKET NUMBER:  AR20050001849 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Conrad V. Meyer

Member

Ms. Linda M. Barker

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 discharge, characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states that he has been trying to get a hold of his military records for the last fifteen years and received them in June 2004.  He also states that his records were needed for medical reasons and that he did not know what he had suffered when he was in the service.  It was his only job but the best experience in the world. 

3.  The applicant provides no additional documentation in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 22 February 1979, the date of his discharge.  The application submitted in this case is dated 29 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 show he entered active duty (AD) on 19 July 1976, as a power generator wheel vehicle mechanic.  He was promoted to specialist four (SP4/E-4) on 1 January 1978.  

4.  On 17 April 1978, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failure to remain at his assigned guard post on 15 April 1978. His punishment consisted of a reduction to pay grade E-3, forfeiture of pay, and 7 days extra duty.

5.  Charges were preferred against the applicant on 6 February 1979, for being AWOL from 21 July 1978 to 29 January 1979.  

6.  The applicant underwent a separation medical examination on 7 February 1979.  He was found to be in good health and was qualified for separation.


7.  The applicant underwent a mental status evaluation on 7 February 1979, which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.  It also indicated that he was alert, oriented, and that his thought process was intact.  The applicant had no disqualifying mental defects sufficient to warrant disposition through medical channels.

8.  On 7 February 1979, he consulted with counsel and voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf. 

9.  On 15 February 1979, the separation authority approved the applicant’s request for discharge and directed that he be furnished a UOTHC and that he be reduced to the lowest enlisted grade.  

10.  The applicant was discharged on 22 February 1979.  He had a total of 2 years and 26 days of creditable service and 188 days of lost time due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 10 April 1981.  The ADRB determined that his discharge was proper and equitable and denied his request on 19 March 1982.

12.  Army Regulation 635-200 sets forth the basic authority for 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.

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.  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.

15.  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 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 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.  There is no indication that the request was made under coercion or duress.  

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant contends that he did not know what he had suffered; however, his separation medical examination clearly shows that he was found to be in good health and was qualified for separation.  His mental status evaluation indicated that he had no disqualifying mental defects sufficient to warrant disposition through medical channels.



5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 10 April 1981 and he was so advised on 19 March 1982.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired 18 March 1985.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEV___  _CVM____  _LB_____  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.




_     James E. Vick_____
          CHAIRPERSON




INDEX

CASE ID
AR20050001849
SUFFIX

RECON

DATE BOARDED
20051026
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.