RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060008835 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 discharge be upgraded to a general discharge. 

2.  The applicant states, in effect, if his discharge were upgraded to a general discharge, he would be eligible for Department of Veterans Affairs (VA) compensation for a back injury he sustained during the period of service under review.  He also states, in effect, that he is already eligible for some VA benefits based on a prior period of honorable service that he completed.  The applicant further states, in effect, that the offenses he committed during the period of service under review were related to his use of alcohol.  The applicant adds that he stopped drinking alcohol completely in 1993 or 1994.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 5 December 1979; Wayne Morein, Sheriff and Tax Collector, Ville Platte, Louisiana, Criminal Record Check, dated 9 May 2006; Ville Platte Police Department, Ville Platte, Louisiana, Criminal Record Check, dated 5 June 2006; Department of Veterans Affairs, VA Medical Center, Alexandria, Louisiana, letter, dated 7 June 2006, subject:  Release of Information Request (pertaining to the applicant), with Lab Results (pages 1 - 4, printed on 7 June 2006) and Progress Notes (pages 1-3, printed on 5 June 2006, and pages 5-7, 9, 11-17 & 19-20, printed on 7 June 2006); and an American Legion Statement (pertaining to the applicant), dated 28 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 5 December 1979, the date of his discharge.  The application submitted in this case is undated; however, it was received on 21 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 military service records show that he enlisted in the Regular Army for a period of 4 years on 13 June 1975.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).  The applicant's military service records show he was assigned to A Battery, 2nd Battalion, 21st Field Artillery, Fort Polk, Louisiana on 23 February 1976.

4.  The applicant’s military service records contain a copy of a DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 19 March 1976.  This document shows that non-judicial punishment was imposed against the applicant for absenting himself without authority from his unit from on or about 15 March 1976 until 16 March 1976.  His punishment consisted of 7 days restriction and
7 days extra duty.

5.  The applicant's military service records show that he was promoted to the rank of specialist four/pay grade E-4 on 1 December 1976.

6.  On 27 April 1978, the applicant was assigned to C Battery, 1st Battalion,
15th Field Artillery, 2nd Infantry Division (Korea).

7.  The applicant’s military service records contain a copy of a DA Form 2627, dated 27 October 1978.  This document shows that non-judicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 20 October 1978 and for absenting himself without authority from his unit from on or about 20 October 1978 until 23 October 1978.  His punishment consisted of reduction to private first class (suspended for
6 months), forfeiture of $100 pay (suspended for 6 months), 14 days extra duty, and 14 days restriction to the limits of Camp Stanley.

8.  On 5 February 1979, Headquarters, Department of the Army, Forces Management Branch, authorized the applicant's request for reenlistment.  On
11 February 1979, the applicant was honorably discharged for the purpose of his immediate reenlistment.  At the time, the applicant had completed 3 years,
7 months, and 29 days of net active service.

9.  The applicant served a total of 19 months in Korea; from 27 April 1978 to
4 December 1979.

10.  The applicant’s military service records document no acts of valor, significant achievement, or service warranting special recognition.

11.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 6 November 1979, that shows the captain in command of
C Battery, 1st Battalion, 15th Field Artillery, 2nd Infantry Division (Korea) preferred charges against the applicant for being absent without leave (AWOL) from on or about 17 October 1979 to on or about 21 October 1979; for on or about 21 October 1979, violating a lawful general regulation by wrongfully possessing a fraudulent Joint Forces (JF) Form 457 (U.S. Forces Korea Letter of Authorization Purchase Record), dated 19 October 1979; and for on or about
3 November 1979, having received a lawful command from his commander, a superior commissioned officer, to sign in on all non-duty days, did willfully disobey said order.

12.  On 8 November 1979, the applicant requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant.

13.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

14.  The captain in command of C Battery, 1st Battalion, 15th Field Artillery,
2nd Infantry Division (Korea), subsequently recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  His recommendation included a DA Form 3822-R (Report of Mental Status Evaluation), dated 23 October 1979, which shows the applicant was able to distinguish right from wrong, was mentally responsible, and had the mental capacity to understand and participate in board proceedings.

15.  The applicant's military service records contain a Standard Form (SF) 93 (Report of Medical History), dated 23 October 1979, completed by the applicant for the purpose of his medical examination prior to separation.  Item 8 (Statement of Examinee's Present Health and Medications Currently Used) of the SF 93 shows that the applicant entered "Good Health" and his initials "I.T."  Item 11 (Have You Ever Had or Have You Now), in pertinent part, shows that for the line entry "Recurrent back pain", the applicant placed an "X" in the "No" column.  In addition, there is no indication on the SF 93 by the applicant referencing his back pain or alcohol use/abuse.  The SF 93 also shows, in pertinent part, that the applicant affixed his signature to the document indicating, "I certify that I have reviewed the foregoing information supplied by me and that it is true and compete to the best of my knowledge.”

16.  The applicant's military service records contain an SF 88 (Report of Medical Examination), dated 23 October 1979, completed by the chief warrant officer serving as the physician's assistant and reviewed by the captain serving as physician.  This document was completed for the purpose of documenting the results of the applicant's medical examination prior to his separation.  The SF 88 is absent any entry or reference to the applicant complaining of, or being treated for, back pain or alcohol use/abuse.

17.  On 26 November 1979, the major general, in command of the 2nd Infantry Division (Korea), approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be issued a discharge under other than honorable conditions.

18.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged on 5 December 1979 in accordance with the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The applicant served 9 months and 20 days of net active service during the period of service under review, as documented by the DD Form 214.

19.  On 4 March 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.  The Army Discharge Review Board found that the applicant’s discharge was proper and equitable, and that it accurately reflected the applicant's overall record of service.

20.  In support of his application, the applicant provides copies a Wayne Morein, Sheriff and Tax Collector, Ville Platte, Louisiana, Criminal Record Check, dated
9 May 2006 and Ville Platte Police Department, Ville Platte, Louisiana, Criminal Record Check, dated 5 June 2006, which show that the applicant had no criminal record.  He also provides a Department of Veterans Affairs, VA Medical Center, letter, with accompanying lab results and progress notes.  The lab results, dated 16 March 1993, show in pertinent part, that the applicant's evaluation for ethanol (ETOH) indicated an intoxication level of >80 milligrams per deciliter (i.e., or >0.08 grams percent).  The progress notes show, in pertinent part, that the applicant was contacted on 14 October 1993 for the purpose of following-up previous detoxification treatment and that the primary presenting problem was reported as alcoholism.  The progress notes, ranging in dates from 19 September 2003 through 15 May 2006, in pertinent part, show that the applicant had a past history of alcohol abuse and "has been dry" since 1994.  The statement submitted by The American Legion's, Military Review Boards Representative, in pertinent part, indicates the applicant regrets his misconduct during his military service while serving in Korea.  This document asserts that the applicant's superiors failed to assist and properly help him treat his back disability and alcohol abuse illness. This document also postulates, in effect, that had the applicant's superiors done so, he would have had a chance to be rehabilitated and continue to soldier effectively.  The representative, on behalf of the American Legion, urges the Board to consider a positive decision on the applicant's request.

21.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

22.  The Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.

23.  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, in effect, that the offenses he committed during the period of service under review were related to his use of alcohol.  He also contends, in effect, that his under other than honorable conditions discharge should be upgraded to a general discharge so that he may gain eligibility for VA compensation for a back injury he sustained during the period of service under review.  However, the applicant provides insufficient evidence in support of his claim.

2.  The applicant's military service records fail to support his contention that his use or abuse of alcohol contributed to his misconduct during the period of service under review.  In addition, the applicant's medical records are absent any evidence that shows he sustained a back injury during the period of service under review.

3.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

4.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s military service records show that, during the period of service under review (i.e., 12 February 1979 to 5 December 1979), the applicant was absent without leave, wrongfully possessed a fraudulent document, and failed to obey a lawful order of a superior commissioned officer.  The applicant provided no evidence, and there is no evidence in the available records, that indicates that the applicant’s overall service during the period under review was not given due consideration at the time he was discharged from military service.  Moreover, the evidence of record shows that the applicant's service during this period was not satisfactory.  Therefore, the applicant is also not entitled to a general discharge.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 4 March 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 3 March 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

___HOF__  ___WFC   ___DED_  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.




_____ Hubert O. Fry______
          CHAIRPERSON




INDEX

CASE ID
AR20060008835
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/13
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19791205
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
Discharge In Lieu of Trial by Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.