RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 January 2006
	DOCKET NUMBER:  AR20050001883 


	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. Rosa M. Chandler

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. William F. Crain

Member

Mr. Gerald J. Purcell

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 undesirable discharge (UD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he was very young.  He had just graduated from high school and had gotten married when he joined the Army.  He and his wife just had a baby girl when he was sent on a tour of duty in Japan.  His wife left him and took their child and he became depressed.  He began abusing alcohol and this led to some poor choices, such as writing worthless checks.  He received a UD.  The applicant states that he realizes that he cannot change the past, but he has changed to affect his future.  Unfortunately, the UD continues to impact his life and inhibits him from obtaining employment with government contractors in his area.  This limits his ability to provide for his family.

3.  The applicant provides two letters of support, dated 8 and 21 September 2001, written on his behalf by a minister and a warrant officer member of his church.

a.  The applicant's minister states, in effect, that he personally served in the military for 13 years, and achieved the rank of sergeant first class.  Therefore, he understands the requirements and expectations placed on military members.  He states the applicant has learned from his mistakes and has developed into a productive and loyal citizen.  He is actively involved in his church and community; he is well respected; and he is known for his dedication and hard work.  The applicant has overcome his past mistakes and he lives a meaningful, productive life.

b.  A retired warrant officer states, in effect, that he met the applicant approximately 4 years ago when he began attending the church.  At the time, the applicant was the men's ministry president, the applicant also taught Sunday school for the boys group.  The applicant is professional, trustworthy and he demonstrates unquestionable work ethics.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
5 March 1974.  The application submitted in this case is dated 17 July 2002.

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.  Prior to the period of service under review, the applicant served honorably in the Regular Army (RA) from 11 February 1969 to 20 July 1972, when he was separated for the purpose of immediate reenlistment.  The applicant served in Japan from 3 April 1970 to 5 March 1974. 

4.   On 21 July 1972, at age 22, while assigned to Okinawa, Japan, the applicant reenlisted in the RA for 6 years, his previous military occupational specialty (MOS) 05K (Teletype Intercept Operator), and in pay grade E-4.

5. The applicant's record shows that, prior to charges being levied against him for writing worthless checks between August and October 1972, he wrote at least six bad checks totaling $1,013.00 to various merchants, to include American Express, the Noncommissioned Officers' Club and other facilities at the United States Army Security Agency Field Station (USASAFS), Torii Station, Okinawa.  In 1972, the applicant also borrowed $1,000.00 from the Okinawa Department of Defense Credit Union, the terms of the loan was $47.06 per month for 24 months.  In February 1973, the applicant's unit was notified that he still owed an outstanding balance on the loan in the amount of $967.73 and that the loan was in default.

6.  In November 1973, an Article 32 investigation ensued after the applicant's unit was advised that he had written an undetermined number of checks knowing his personal banking account contained insufficient funds.  The applicant admitted that he had personal problems and that he spent most of his time and money drinking in a local bar.  On 23 November 1973, it was concluded that due to the gravity and repetition of the applicant's acts, sufficient evidence existed to warrant trial by general court-martial. 

7.  On 5 December 1973, the applicant was charged with writing 20 checks in the 
amount of $100.00 each, totaling $2,000.00, drawn on Citizens Bank, Enterprise, 
Alabama when his account contained insufficient funds.

9.  The applicant's record does not contain all of the facts and circumstances
surrounding the discharge process.  However, his record does contain a properly constituted DD Form 214 that was prepared at the time of his separation.  The DD Form 214 shows that on 5 March 1974, the applicant was separated for the good of the service in-lieu of trial by court-martial, under the provisions of chapter
10, Army Regulation 635-200, with a UD.  He had completed 1 year, 7 months and 15 days of active military service on the enlistment under review and he had completed 5 years, 0 months and 25 days of total active service.  He had no recorded lost time. 

11.  The evidence of record indicates the applicant applied to the Army Discharge Review Board (ADRB) in 2001.  The ADRB returned his application without action because the application was filed outside of the ADRB's 15-year statue of limitation.

12.  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.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant 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.  Although the facts and circumstances surrounding the discharge process are missing, he would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge. He would have consulted with defense counsel and signed a statement indicating that he had been informed he could receive a UD and the ramifications of receiving such a discharge.  He would have voluntarily requested discharge to avoid trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board presumes administrative regularity in the discharge process and the applicant has provided no information that would indicate the contrary. 

2.  The applicant's character reference letters were noted, however, they are not sufficient to establish a basis to upgrade his discharge, neither is the lack of job opportunities a basis for the upgrade of a discharge.

3.  The applicant’s contention that he was young and immature was also taken into consideration; however, he met entrance qualification standards, to include age.  Further, there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 March 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 March 1978.  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

__ji____  __wfc___  __gjp___  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.



							John Infante
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20050001883
SUFFIX

RECON

DATE BOARDED
20060119
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19740305
DISCHARGE AUTHORITY
AR635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.6000
2.

3.

4.

5.

6.