RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:           1 September 2005   
	DOCKET NUMBER:  AR20050001881


	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 that his discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states he believes his discharge is unjust because he was focused on saving his marriage.  He contends he requested a transfer back to the States and his request was denied.  He also contends it was never explained to him that this type of discharge would prevent him from using his Department of Veterans Administration benefits.

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

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 January 1977.  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 enlisted on 10 December 1970, served as a light vehicle driver, and was honorably discharged on 18 November 1971 for immediate reenlistment.  He reenlisted on 19 November 1971 for a period of 6 years.   

4.  On 9 September 1976, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (possessing eight tablets of methequalone).  His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay, and extra duty.  On 15 September 1976, the suspended portion of the applicant’s punishment was vacated. 

5.  On 28 September 1976, nonjudicial punishment was imposed against the applicant for failure to repair (two specifications).  His punishment consisted of a forfeiture of pay, extra duty, and restriction.    

6.  A Commander’s Inquiry, dated 24 January 1977, reported that the applicant’s marital problems were brought to his unit commander’s attention in August 1976, that the unit commander discussed the situation with the applicant and his wife, and that the applicant’s wife returned to the United States.  Subsequently, the applicant received a Red Cross message that his wife had had complications during her pregnancy in the United States and requested emergency leave to join her.  The applicant was granted emergency leave on 6 October 1976.  

7.  The applicant did not report back to duty on time and was reported absent without leave (AWOL) effective 3 November 1976.  He returned to military control on 6 December 1976. On 20 January 1977, charges were preferred against the applicant for the AWOL period.

8.  The applicant’s voluntary request for discharge and the separation authority’s action are not contained in the available records.  However, the applicant's DD Form 214 (Report of Separation from Active Duty) for the period ending 
18 January 1977 shows that he was discharged under other than honorable conditions on 18 January 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 years and 5 months of creditable active service with 34 days of lost time due to AWOL.  

9.  There is no evidence of record which shows the applicant requested a reassignment. 

10.  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.

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, 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.

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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that a request for reassignment was made by the applicant and denied.   Evidence of record does show the applicant’s unit commander was aware of his martial problems, that the unit commander had discussed the situation with the applicant and his wife, and that the applicant was granted emergency leave to the United States to be with his wife during her pregnancy complications.  The applicant failed to report back to his duty on time. Nevertheless, marital problems are not grounds for upgrading a discharge.  

2.  Although the applicant contends that it was never explained to him that this type of discharge would prevent him from using his Department of Veterans Affairs benefits, in the absence of evidence to the contrary, it must be presumed the applicant consulted with counsel prior to his voluntary request for discharge and was advised that he might be ineligible for many or all benefits administered by the Veterans Administration.

3.  The applicant’s record of service included two nonjudicial punishments (one for possession of an illegal drug) and 34 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for discharge 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.  

5.  The type of discharge directed and the reasons for separation were appropriate considering his record of service.

6.  Records show the applicant should have discovered the alleged now under consideration on 18 January 1977; therefore, the time for the applicant to file a request for correction of any injustice expired on 17 January 1980.  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
AR20050001881
SUFFIX

RECON

DATE BOARDED
20050901
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19770118
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
In lieu of trial by court-martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.