RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060009516 


	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. Gerard W. Schwartz

Acting Director

Mr. Luis Almodova

Senior Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

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 be upgraded to at least a general, under honorable conditions, discharge.

2.  The applicant states, in effect, that he was found guilty of DWI (driving while intoxicated) and driving without a driver's license.  Because of bad legal advice, he was discharged with a discharge characterized as under other than honorable conditions.  For this offense, he should only have received an Article 15 and a reduction in pay grade or something comparable – not an under other than honorable conditions discharge for which he has been paying for twenty-three years.  Prior to the time period in question, from February 1993 to May 1993, his military record was exemplary so he believes he should be upgraded to at least a general, under honorable conditions, discharge.

3.  The applicant adds that he has had some hard times adjusting to his situation, he has improvised, and he has overcome the issues that he faced.  The truth is that he wanted to served his country as a career Soldier; so in his mind, the question is not how much he loves his country; but, how much his country loves him.  If he were allowed, he would be on the front line of this war on terror.

4.  The applicant summarizes his statement by saying that if he had not been bullied into taking an under other than honorable conditions discharge, he would still be serving his country as a leader in the United States military.

5.  The applicant provided no other documents besides a "Statement of Injustice Correction," dated 30 June 2006, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that occurred on 10 May 1983.  The application submitted in this case is dated 30 June 2006 and was received for processing on 10 July 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 limitation 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 enlisted in the US Army Reserve, Delayed Enlistment Program, on 24 April 1980.  On 13 May 1980, he enlisted in the Regular Army for a period of 3 years.  The applicant successfully completed one station unit training at Fort Benning, Georgia.  On completion of this training, he was awarded the military occupational specialty, 11C, Indirect Fire Infantryman.

4.  On 21 August 1980, the applicant was reassigned to Germany.  He completed a 19-month tour in Berlin and on completion of this overseas tour, he was assigned to Company A, 3rd Battalion, 60th Infantry, Fort Lewis, Washington.

5.  A DA Form 4856-R, General Counseling Form, on file in the applicant's personnel record, shows he was counseled on 4 January 1983, for not making payments on a debt at the post rent-all store for a washer and dryer.  He was advised that failure to pay his just debts could subject him to nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).

6.  On 30 March 1983, the applicant's unit commander recommended he be barred from reenlistment for having established a record of non-payment of just debts and for other factual and relevant indicators of untrainability or unsuitability, including frequent indebtedness, disrespectful behavior toward military superiors, and his DWI/reckless driving violation.  His unit commander provided counseling statements and police reports, all of which, he stated, showed that the applicant had violated principles of good order and discipline which substantiated his unsuitability.

7.  The applicant acknowledged he was being recommended for imposition of a bar to reenlistment on 31 March 1983.  

8.  On 30 March 1983, charges were preferred against the applicant for missing, through neglect, the movement of his unit to Alaska, on 11 January 1983; for operating a passenger car, while drunk, on 10 January 1983; for being the driver of a vehicle at the time of an accident and wrongfully and unlawfully leaving the scene of this accident on 10 January 1983; for being disrespectful to his superior noncommissioned officer, on 21 March 1983; and for behaving himself with disrespect toward his superior commissioned officer, on 21 March 1983.

9.  The applicant was referred for trial by a special court-martial which was empowered to adjudge a bad conduct discharge.

10.  The request for bar to reenlistment was approved by the appropriate approving authority on 4 April 1983.  The applicant was so notified.

11.  All documents related to the applicant's request for discharge for the good of the service – in lieu of court-martial are not available for the Board to review.  Documents that are available show that on 22 April 1980, the applicant voluntarily submitted a request for discharge for the good of the service under the provision of Army Regulation (AR) 635-200, chapter 10.

12.  In his request for discharge, the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge.

13.  The applicant stated in his request he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.

14.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charges against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated, "I hereby state that under no circumstances do I desire further rehabilitation for I have no desire to perform further military service."

15.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on 22 April 1983 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice by counsel, the applicant stated the decision to submit a request for discharge for the good of the service was his own.

16.  The applicant stated that he understood that if his request were accepted, he could be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge certificate.  He was advised and he stated he understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.

17.  The applicant stated he also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

18.  The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  The applicant opted not to submit a statement in his own behalf.

19.  The applicant's service medical records are not available for the Board's review.  These records were provided to the Department of Veterans Affairs Regional Office, Portland, Oregon, on about 10 July 1990.

20.  The applicant's request for discharge for the good of the service was approved by the appropriate approving authority, a brigadier general, on 27 April 1983.

21.  The applicant was discharged with his service characterized as under other than honorable conditions, in the rank and pay grade of Private, E-1, under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of court-martial, on 10 May 1983.  On the date of his discharge, the applicant had completed 2 years, 11 months, and 28 days creditable active military service, with no time lost.

22.  The applicant was promoted to the rank and pay grade, Specialist Four, E-4, on 1 November 1981.  This would be the highest rank and pay grade he would hold while serving in the Army.

23.  Item 13, of the applicant's DD Form 214, shows he was awarded the Army of Occupation Medal, the Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16 Rifle), while on active duty.  The record contains no documentary evidence of acts of valor or achievement, which warranted special recognition.

24.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  On 3 April 1997, he was advised that after careful consideration of his military records and all other available evidence, the ADRB had determined he had been properly and equitably discharged.

25.  AR 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 submit, at any time after the charges have been preferred, 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, but the separation authority may direct a general discharge or an 

honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

26.  AR 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 separation specifically allows such characterization.

27.  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 ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the 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 evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

2.  The applicant's allegation he was found guilty of DWI and driving without a driver's license and this led to his discharge from the Army with an under other than honorable conditions discharge is not completely factual.  For this offense, he stated, he should only have received an Article 15 and a reduction in pay grade or something comparable – not an under other than honorable conditions discharge.

3.   The evidence shows that charges were brought against him for missing, through neglect, the movement of his unit to Alaska for training; for operating a passenger car, while drunk; for being the driver of a vehicle at the time of an accident and wrongfully and unlawfully leaving the scene of the accident; and for being disrespectful to his superior noncommissioned officer and to his superior commissioned officer.

4.  He alleges because of bad legal advice, he was discharged with a discharge characterized as under other than honorable conditions.  The applicant provided no evidence the legal advice he was given by an officer, in the rank of Captain, a member of the Judge Advocate General's Corps, was faulty or flawed.

5.  The applicant alleges he was bullied into taking an under other than honorable conditions discharge; however, in his request for discharge for the good of the service, he clearly stated he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.

6.  The applicant alleges he wanted to serve his country as a career Soldier, and if he were allowed he would be on the front line of the war on terror; however, in his request for discharge for the good of the service, he stated, "I hereby state that under no circumstances do I desire further rehabilitation for I have no desire to perform further military service."

7.  The quality of the applicant’s overall service was considered.  The applicant's record contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his under other than honorable conditions discharge to as general, under honorable, discharge.  The applicant's service was determined not to be sufficiently meritorious to warrant an upgrade of his discharge.  

8.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.

9.  In order to justify correction of a military record, the applicant must show, 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.

10.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his under other than honorable conditions discharge.

11.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 3 April 1997.  As a result, the time for him to file a request for correction of any error or injustice to this Board expired on 2 April 2000.  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

__LWR__  __MKP___  __REB__  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.




_____M. K. Patterson_______
          CHAIRPERSON



INDEX

CASE ID
AR20060009516
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the Good of the Service – In lieu of Court-martial
BOARD DECISION
Deny
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
144.0133
3.
144.7130
4.
144.7600
5.

6.