RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  March 13, 2007
	DOCKET NUMBER:  AR20060010971 


	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.


X
	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 discharge under other than honorable conditions be upgraded to at least a general discharge or better. 

2.  The applicant states, in effect, that his first discharge was honorable and given the length of time that has passed, he desires to have his discharge upgraded so that he may utilize his benefits.  

3.  The applicant provides a copy of his report of separation (DD Form 214). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 November 1983.  The application submitted in this case is dated 28 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 in Raleigh, North Carolina on 5 February 1980 for a period of 3 years, training as a unit supply specialist and assignment to Korea.  He completed is training and was transferred to Korea on 29 June 1980.  He completed his tour in Korea on 23 June 1981 and was transferred to the United States Military Academy at West Point, New York for duty as a supply specialist.  He was advanced to the pay grade of E-4 on 1 January 1982 and got married on 24 July 1982.  

4.  On 5 December 1982, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 6 December 1982 for a period of 3 years and assignment to the Berlin Brigade.  

5.  On 19 October 1983, charges were preferred against the applicant for five specifications involving the wrongful possession, distribution and use of marijuana and the wrongful use of cocaine.

6.  On 3 November 2003, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement in his own behalf in which he stated that the incident for which he was charged did not reflect his total service and requested that he be issued a General Discharge Certificate.  

7.  His chain of command recommended that he be tried by a special           court-martial empowered to issue a bad conduct discharge or that he be discharged under other than honorable conditions.

8.  The appropriate authority (a lieutenant general) approved his request on 17 November 1983 and directed that he discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 28 November 1983, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 9 months and 24 days of total active service.

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of service and the serious nature of the charges against him at the time simply does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

5.  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.
 
6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 November 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 November 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

__X ___  ___X__  __X___  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.




_____ X_______
          CHAIRPERSON




INDEX

CASE ID
AR20060010971
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
1983/11/28
DISCHARGE AUTHORITY
AR635-200 CH10 . . . . .  
DISCHARGE REASON
GD OF SVC
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.7000
689/A70.00
2.

3.

4.

5.

6.