RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060006651 


	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.



Director


Analyst

The following members, a quorum, were present:


Chairperson


Member


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

2.  The applicant essentially states that other than the fact that he had drug charges preferred against him, he was a good Soldier with a good service record. He also states, in effect, that he had no other problems or troubles while on active duty.  He continued by essentially stating he believes he should be given a second chance by obtaining an honorable discharge to regain his honorable status.

3.  The applicant provides a self-authored letter, dated 3 May 2006, in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 September 1980, the date of his discharge from the Regular Army.  The application submitted in this case is dated 3 May 2006.

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 records show that he enlisted in the Regular Army on 
7 August 1979.  He completed basic and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  On 
28 December 1979, he departed the continental United States for his initial permanent duty assignment in Germany, and was assigned to Headquarters and Company A, 205th Transportation Battalion.

4.  On 7 May 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order to report to the dining facility at Fliegerhorst Kaserne, Erlensee, Germany on or about 0330 hours on 10 April 1980, and for willfully disobeying a lawful order to wake up and return to his place of duty at Fliegerhorst Kaserne, Erlensee, Germany on or about 0845 hours on 1 May 1980.  His punishment consisted of a forfeiture of $100.00 per month for 1 month, and to perform extra duty for 14 days.

5.  Although the applicant’s records to do contain the paperwork which processed him for elimination from the service, there is evidence that he was charged with wrongful possession and sale of hashish; a controlled substance.  He was read his rights on 2 June 1980, and the applicant indicated that he did not want to give up his rights, and requested a lawyer.

6.  On 10 September 1980, the applicant was discharged from the Regular Army under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), and was furnished a DD Form 794A (Discharge Certificate [Under Other Than Honorable Conditions]).  Item 25 (Separation Authority) on the applicant’s DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he was separated under the provisions of Chapter 10, Army Regulation 635-200.  Item 28 (Narrative Reason for Separation) of this form has an entry of “Admin Discharge Conduct Triable by Court Martial.”  

7.  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.

8.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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.


10.  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.  The applicant contends that his UOTHC discharge should be upgraded.

2.  Although the paperwork surrounding his elimination was not present in his military records, it is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As the applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows that he accepted NJP under Article 15 of the UCMJ, and was also charged with wrongful possession and sale of a controlled substance.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 September 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
9 September 1983.  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

___MM  _  __JM  ___  ___QS__  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.




_____  Mark Manning_______
          CHAIRPERSON




INDEX

CASE ID
AR20060006651
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800910
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF COURT-MARTIAL
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7400.0000
2.

3.

4.

5.

6.