RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060009943


	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.



	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 his under other than honorable conditions (UOTHC) discharge be upgraded to general or honorable.

2.  The applicant states he was told by a "counseling officer" he would receive a general discharge, which is why he turned himself in at Sharpe Army Depot.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 2 March 1982.  The application submitted in this case is dated 5 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 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 enlisted in the Regular Army for 3 years on 27 February 1980.  Following training in MOS (military occupational specialty) 15D (Lance Missile Crewman), he was assigned to Fort Sill, Oklahoma for duty.

4.  The applicant went AWOL (absent without leave) on 13 February 1981.  He was dropped from the rolls of the Army as a deserter on 13 March 1981.  He returned to military control at Sharpe Army Depot, Lathrop, CA on 13 October 1981 and was transferred to the Personnel Control Facility, Fort Ord, CA.

5.  On 16 October 1981, court-martial charges were preferred against the applicant for AWOL from 13 February 1981 to 13 October 1981.  On 16 October 1981, he received legal counsel from an officer of the Judge Advocate General's Corps, who explained the nature of the charges against him and the options available to him.  After being counseled, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, 

chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire rehabilitation, nor did he desire further military service.  He stated that he understood the nature and consequences of the UOTHC discharge that he might receive.  He declined to submit a statement in his own behalf.

6.  The applicant was placed on excess leave without pay on 16 October 1981.  His request for discharge was approved on 31 December 1981.  He was discharged under other than honorable conditions on 2 March 1982.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

8.  There is no record of the applicant having petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was AWOL for 242 days.  After returning to military control, court-martial charges were preferred against him and he requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The applicant's chapter 10 discharge request was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 March 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 March 1985.  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

__mjnt__  __jgh___  __dll___  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.



						Marla J. N. Troup
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060009943
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19830302
DISCHARGE AUTHORITY
AR 635-200 C10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.