RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060011092


	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 honorable.

2.  The applicant states, in effect, he was a good young man and he proudly joined the Army.  The CID (Criminal Investigation Division) placed an informer in his Basic Combat Training (BCT) company.  The informer set up marijuana deals then notified CID.  The applicant states although he did not participate, he was rounded up with the users and ended up being punished and harassed.

3.  The applicant states he completed BCT, but failed AIT (Advanced Individual Training).  He was then sent to Fort Jackson, SC for a new AIT which he successfully completed.  Following AIT, he was assigned to the 553rd Military Police (MP) Company, 101st Airborne Division, Fort Campbell, KY.

4.  The applicant states he did well at Fort Campbell and things were looking up. Then he went home for the Christmas holidays and returned after New Year's 1978.  Unbeknownst to him, his girlfriend hid a pill, a Black Beauty, in his pack of cigarettes; something to help keep him alert.  When he returned to his unit, a drug dog came through the barracks and alerted on his cigarettes; the pill was methamphetamine.

5.  The applicant states he was reassigned to the Headquarters Company, 101st Aviation Group.  He was supervised by a prejudiced master sergeant who made him cut the grass around the S-4 Shop, clean the floors, empty trash cans.  In desperation, he went AWOL (absent without leave) for more than 1 year.  He finally turned himself in and was returned to Fort Campbell.

6.  The applicant provides a self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 8 October 1980.  The application submitted in this case is dated 21 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 evidence of record shows that on 7 January 1977, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP).  He was subsequently discharged from the DEP and enlisted in the Regular Army on 7 February 1977 for a period of 3 years, training in MOS (military occupational specialty) 76J (Medical Supply Specialist), and assignment to the 18th Airborne Corps Artillery.

4.  The applicant underwent BCT at Fort Leonard Wood, MO.  On 23 March 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for using marijuana on 19 March 1977.  As punishment, he was given 15 days of correctional custody (suspended) and a forfeiture of $100.00 per month for 2 months.

5.  The applicant completed BCT and was transferred to Fort Sam Houston, TX for AIT and training in MOS 76J.  He did not complete this training and was reassigned to Fort Jackson, SC for training in MOS 71L (Clerk Typist).  After successfully completing training and being awarded his MOS, he was transferred to Fort Campbell where he served as a desk clerk in the 553rd MP Company.

6.  The applicant accepted his second NJP while assigned to the 553rd MP Company.  The applicant failed to go to his place of duty at the time prescribed.  As punishment, he was made to forfeit $50.00 of pay.

7.  The applicant was transferred from the MP Company to Headquarters and Headquarters Company (HHC), 101st Aviation Group.  While assigned to this unit, he accepted two NJPs.  He failed to return from an authorized leave and was charged with 1 day of AWOL.  As punishment, he was given 14 days of extra duty and a forfeiture of $75.00.  On 27 November 1978, he failed to go to his place of duty at the time prescribed and was reduced to Private (PVT/E-2), given 14 days of extra duty, and a forfeiture of $50 pay per month for 2 months.

8.  On 23 January 1979, the applicant went AWOL from Fort Campbell.  He was dropped from the rolls of the Army as a deserter on 22 February 1979.  On 6 August 1980, he surrendered to civil authorities and was returned to military control at Fort Campbell.

9.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record contains a properly constituted DD Form 214 which identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (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 would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

10.  On 8 October 1980, the applicant was discharged under the provisions of chapter 10, AR 635-200.  He had 2 years, 1 month, and 19 days of creditable service and 380 days of lost time prior to his expiration term of service (ETS) date.  He had 181 days of time lost after his normal ETS.

11.  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 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.

12.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  Court-martial charges were preferred against the applicant for 380 days of AWOL.  Had he been tried and convicted, he could have received a punitive discharge and a sentence to confinement.  In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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 record contains numerous examples of misconduct; he received NJP on four occasions.  Although the applicant contends his problems were caused by others and that he was basically an innocent victim, the record does not support this view.

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 8 October 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 October 1983.  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

__wfc___  __eem___  __rmn___  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.



							William F. Crain
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011092
SUFFIX

RECON

DATE BOARDED
20070308
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19801008
DISCHARGE AUTHORITY
AR 635-200 C10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.