RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060008549 


	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 be upgraded to an honorable discharge or a general discharge. 

2.  The applicant essentially states that he wishes to have his under other than honorable conditions discharge upgraded. 

3.  The applicant provides no additional evidence in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 11 March 1980, the date of his discharge from the Regular Army.  The application submitted in this case is dated 10 June 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 30 May 1978.  He completed basic and advanced individual training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  Prior to completing advanced individual training, the applicant went absent without leave (AWOL) from 8 August 1978 to 13 August 1978.  He reported to Fort Riley, Kansas for his permanent duty assignment on or about 27 September 1978.  

4.  On 18 December 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for going AWOL from 28 to 29 November 1978.  His punishment consisted of 5 days of extra duty.

5.  On 19 March 1979, the applicant again went AWOL, and was subsequently dropped from the rolls and listed as a deserter.  On 2 January 1980, the applicant was apprehended by civilian authorities in Milwaukee, Wisconsin, and was returned to military control on that date.  

6.  On or about 14 January 1980, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge(s) against him or (a) lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

7.  In his request for discharge, the applicant acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offense(s) with which he was charged, any relevant lesser included offense(s) thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

8.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  

9.  The applicant elected to submit a statement on his own behalf, which essentially stated that he was losing everything, and that he couldn’t stand the pressure at that time.  He also states, in effect, that if he was called back into service, he would go AWOL again.  

10.  On 5 February 1980, the proper approval authority approved the applicant’s discharge, and directed that he receive a discharge Under Other Than Honorable Conditions.  On 11 March 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge From Active Duty) that was issued at the time of his discharge shows that authority for his discharge was Chapter 10, Army Regulation 635-200.  Item 28 (Narrative Reason for Separation) of this document has an entry of, “Administrative discharge conduct triable by court-martial.”  Item 24 (Character of Service) of this document has an entry of “Under Other Than Honorable Conditions.”

11.  On 7 June 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  The applicant provided no substantive reason why his discharge should be upgraded.

13.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, 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.  Army Regulation 635-200, paragraph 3-7b, 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.



16.  Army Regulation 635-200, paragraph 3-7c, further provides that a discharge under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable.  It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in certain circumstances.

17.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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 contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge or a general discharge. 

2.  Evidence of record clearly shows clear that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he 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 had 297 days of lost time due to AWOL, and had received NJP under Article 15 of the UCMJ.  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 or an honorable discharge.

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 7 June 1982.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 6 June 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 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
AR20060008549
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800311
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10
DISCHARGE REASON
CONDUCT TRIABLE BY CM – AWOL
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.