RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   1 November 2005
	DOCKET NUMBER:  AR20050001882 


	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. Betty A. Snow

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Thomas E. O’Shaughessy

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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

2.  The applicant states, in effect, his Article 15 was based on one single incident. He claims when he was informed his step-father was on his death bed, he told his commander about the situation, and requested leave; however, he was informed that because it was not a member of his immediate family, he could not take leave.  He states that when his step-father passed away, he again requested leave, and he was again told he could not take leave.  He claims that his commander told him that he would not blame him if he went anyway.  Not understanding the impact, he went to the funeral and he received an Article 15 for being absent without leave (AWOL).  He also states this was the only incident that occurred in his 36 months of service, and in his last year of service, he was promoted from private first class (PFC) to specialist four (SP4) in a very short period.  He concludes by stating that his decision to leave the service and not reenlist was because he felt he needed a better job that would better support his family.  He feels his discharge was inequitable. 

3.  The applicant provides a three page self-authored statement and a copy of his separation document (DD Form 214) in support of his application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 4 June 1980.  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 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 Army and entered active duty on 4 May 1977.  He was trained in, was awarded, and served in the military occupational specialty (MOS) 13B (Cannon Crewman).  The highest rank he attained while on active duty was SP4.
4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant’s record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) on 25 October 1977, for being AWOL from on or about 11 though on or about 20 October 1977.  His punishment for this offense included a forfeiture of $75.00 and 14 days of restriction and extra duty.

6.  On 21 April 1980, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 28 September 1979 through on or about 10 April 1980.

7.  On 22 April 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

8.  On 22 April 1980, the applicant submitted a statement in support of his request for discharge.  In this statement, he indicated that he no longer wanted to participate in the military service and requested that his discharge request be approved for the sake of his marriage.

9.  On 12 May 1980, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC.  On 4 June 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years, 6 months, and 10 days of creditable active duty service and that he accrued 204 days of time lost due to AWOL.
 
10.  There is no indication that the applicant applied to the Army Discharge Review Board for an 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 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 UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was based on a single incident in his 36 months of service and the supporting documents he submitted were carefully considered.  However, the record shows he accrued 204 days of time lost due to two separate periods of being AWOL.  Therefore, there is insufficient evidence to support his claim. 

2.  The evidence of record confirms 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 and the rights of the applicant were fully protected throughout the separation process.  

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 should have discovered the alleged error or injustice now under consideration on 4 June 1980.  Therefore, the time for him to file a request for correction of any error or injustice expired on 3 June 1983.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEA__  __TEO__  ___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.




____James E. Anderholm___
          CHAIRPERSON




INDEX

CASE ID
AR20050001882
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2005-11-01
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1980/06/04
DISCHARGE AUTHORITY
AR 635-200, Ch 10. . . . .  
DISCHARGE REASON
Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110.0200.0000
2.

3.

4.

5.

6.