RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060011122 


	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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was very young and immature when he received his UOTHC discharge for being drunk, and for departing absent without leave (AWOL) for less than thirty days.  He states that he would like the stigma of the UOTHC discharge removed from his record for both his family’s and his benefit.  He also indicates that he is raising three wonderful children, owns his own business, and is a positive contributor to his community.

3.  The applicant provides a copy of his separation document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 25 July 1983.  The application submitted in this case is dated 27 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’s record shows he enlisted in the Army and entered active duty on 25 January 1982.  He completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Carson, Colorado.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 
19E (Armor Crewman).

4.  The applicant’s DA Form 2-1 shows, in Item 18 (Appointments & Reductions), that he was promoted to the rank of private first class/e-3 (PFC/E-3) on 1 November 1982, and that this is the highest rank he held while serving on active duty.  Item 18 also shows he was reduced to the rank of private/E-1 (PV1) on 21 March 1983.

5.  Item 9 (Awards, Decorations and Campaigns) of the applicant’s DA Form 2-1 shows that during his active duty tenure, he earned the Marksman Marksmanship Qualification Badge with Pistol Bar and Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a Personnel Action (DA Form 4187), dated 2 February 1983, which shows he was reported AWOL on 2 February 1983.  A DA Form 4187, dated 4 March 1983, on file shows he surrendered to the Mobile, Alabama Police Department on 29 February 1983, and that he was placed in civilian confinement on that date.  A third DA Form 4187, dated 14 March 1983, shows he was returned to military authorities on 11 March 1983.

7.  On 21 March 1983, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 2 through 28 February 1983.  

8.  A DA Form 4187, dated 30 March 1983, shows the applicant again departed AWOL on 29 March 1983, and remained away until surrendering to the Denver, Colorado Police Department on 4 April 1983.  He was returned to military authorities on 11 April 1983.

9.  On 17 November 1976, a Charge Sheet (DD Form 458) was prepared preferring the following court-martial charges against the applicant for violating the following Articles of the UCMJ by committing the offenses indicated:  86, by being AWOL from 29 March 1983 to 4 April 1983;  91, two specifications, by disobeying the lawful orders of a superior commissioned officer and superior noncommissioned officer on 18 April 1983; 108, by damaging military property valued in excess of $50.00 but less than $100.00; and 109, by damaging the property of another Soldier valued at about $65.00 on 26 March 1983.

10.  On 4 May 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200. 


11.  In his request for discharge, the applicant acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

12.  The applicant submitted a personal statement in support of his request for discharge, in which he claimed the reason for his discharge request was he did not want to get into anymore trouble.  He also indicated that at that time he had been in the Army 16 months and that he had a hard time adjusting to the Army’s way of life.  He claimed that when his attempts to get help failed, he went AWOL.

13.  The applicant’s unit and battalion commanders recommended that his request for discharge be disapproved, indicating that he was seeking an easy way out of being held accountable for his long list of offenses over a seven month period and they indicated the applicant should face the consequences of his breaches of discipline.  

14.  On 10 June 1983, a Special Court-Martial (SPCM) convicted the applicant of violating Articles 86, 91, 108, and 109, of the UCMJ.  His resultant sentence included confinement at hard labor for two month and forfeiture of $382.00 a month for three months.  The sentence was adjudged on 10 June 1983.

15.  On 30 June 1983, the court-martial convening and separation authority approved only so much of the applicant's SPCM sentence that provided for hard labor from 10 through 30 June 1983; and approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200.  He also directed the applicant receive an UOTHC discharge.  On 25 July 1983, the applicant was discharged accordingly.  

16.  The DD Form 214 issued to the applicant on the date of his separation  confirms that he was separated with an UOTHC discharge, under the provisions of chapter 10, Army Regulation 635-200, For The Good of the Service, In Lieu of Trial by Court Martial”.  It also shows that he completed 1 year, 3 months, and 
25 days of creditable active military service and that he accrued 71 days of time lost due to AWOL and confinement.   

17.  There is no evidence of record to show that the applicant ever petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade within the ADRB's 15-year statute of limitations.  
	

18.  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.  A discharge UOTHC is normally considered appropriate; however, the separation authority may issued a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's overall record of service.  

19.  Paragraph 10-1c of the separation regulation states that if disciplinary proceedings are not held in abeyance, the general court-martial convening authority may approve the soldier’s request for discharge in lieu of trial by 
court martial after the soldier has been tried.  In this event the officer who convened the court, should not approve any punitive discharge adjudged.  In addition, he should only approve so much of any adjudged sentence to confinement at hard labor or hard labor without confinement as has been served at that time of the action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UOTHC discharge should be upgraded because he was a young and immature when he committed the offenses that led to his discharge and because of his post achievements were carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  

2.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes the applicant's acceptance of NJP and his conviction of several offenses by a SPCM.  

3.  The evidence of record also shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The applicant, after consulting with counsel and being advised of his rights and the effects of an UOTHC discharge, voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of undistinguished service.  Therefore, a GD or HD was not warranted at the time, nor would it be appropriate to upgrade his discharge at this time.  
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 request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 July 1983, the date of his discharge.  Therefore, the time for him to file a request for correction of any error or injustice expired on 24 July 1986.  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

___JI____  __SAP __  __QSA__  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.




____John Infante_________
          CHAIRPERSON


INDEX

CASE ID
AR20060011122
SUFFIX

RECON
NO
DATE BOARDED
2007/04/03
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1983/07/25
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Good of the Service, In Lieu of Trial by CM
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000
2.

3.

4.

5.

6.