RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 5 April 2007
DOCKET NUMBER: AR20060010617
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. Edmund P. Mercanti
Analyst
The following members, a quorum, were present:
Ms. Linda D. Simmons
Chairperson
Mr. Jeffrey C. Redmann
Member
Mr. Scott W. Faught
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 that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.
2. The applicant states that he was told he had the choice of remaining in the Army or being discharged. He chose discharge because of family problems and because an officer assured him that his discharge would be upgraded 6 months after his discharge.
3. The applicant provides a copy of his separation document.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 7 February 1983. The application submitted in this case is dated 18 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 applicants failure to timely file.
3. The applicant enlisted in the Regular Army on 11 September 1979. He was awarded the military occupational specialty of military police and was promoted to pay grade E-2.
4. On 6 January 1983, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 8 September 1980 to 28 December 1982.
5. On 7 January 1983, the applicant requested discharge for the good of the service in lieu of trial by court-martial. In that request the applicant admitted guilt to the charge which he acknowledged could lead to him being sentenced to a Bad Conduct Discharge (BCD) or Dishonorable Discharge (DD). He also
acknowledged that he could be issued an UOTHC discharge and that there is no automatic upgrading nor review by any government agency of a less than honorable discharge.
6. The applicants request was approved by the appropriate authority. Accordingly, the applicant was issued an UOTHC discharge certificate on 7 February 1983. His separation document shows that he had 1 year, 1 month, and 7 days creditable service; 2 years, 3 months and 19 days of lost time; and 31 days of excess leave.
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, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant voluntarily requested discharge to avoid trial by court-martial. In his request he admitted guilt to the offense and acknowledged that his discharge would not be automatically upgraded.
2. The applicants discharge process was accomplished in accordance with the applicable regulations with no indication that the applicants rights were violated.
3. The characterization of the applicants service is warranted by the severity of his offense.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 February 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 February 1986. 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
___lds___ ___jcr___ ___sef___ 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.
_________Linda D. Simmons________
CHAIRPERSON
INDEX
CASE ID
AR20060010617
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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