RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011781 


	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 that his under other than honorable conditions discharge be upgraded to general or honorable conditions.

2.  The applicant states that he went absent without leave (AWOL) because his mother was dying of cancer and he felt overwhelmed with her illness.   

3.  The applicant did not provide additional documentary evidence in support of this application.    

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 August 1978, the date of his discharge from the Army.  The application submitted in this case is dated 3 August 2006, and received on
17 August 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.  On 28 September 1977, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for six years.  On 7 November 1977, he was discharged from the DEP and enlisted in the Regular Army for three years.  He completed training requirements and was awarded military occupational specialty 17B (Field Artillery Radar Crewman).  He attained the grade of private/E-2.

4.  On 23 June 1978, court-martial charges were preferred against the applicant for being AWOL (2-20 June 1978), three specifications of failing to repair; missing movement; disobeying a lawful order; and disobeying a lawful command.

5.  On 17 July 1978, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.

6.  The applicant indicated in his request that he understood he could be furnished an under other than honorable conditions discharge, and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He did not submit a statement in his own behalf.

7.  On 18 July 1978, the unit commander recommended approval of the applicant's request for discharge.  The intermediate commanders recommended that the applicant's request for discharge be approved and that he be furnished an under other than honorable conditions discharge.

8.  On 28 July 1978, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge.

9.  Accordingly, on 3 August 1978, the applicant was discharged with an under other than honorable conditions discharge, under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He served 8 months and 9 days of active duty during the period under review, and had 18 days of lost time due to being AWOL.

10.  On 26 January 1983, the Army Discharge Review Board, after careful review of his case, denied his petition for an upgrade of his characterization of service.

11.  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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, an undesirable discharge, under other than honorable conditions, is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.
13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

14.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had 18 days of lost time due to being AWOL during a relatively short period of service.  He was also charged with failing to repair, missing movement, and disobeying lawful orders and commands.  

2.  The applicant contends that he was overwhelmed with his mother's illness; however, at the time he requested discharged he failed to provide a statement in his own behalf explaining his personal problems.  Further, the applicant had many legitimate avenues through which to obtain assistance or relief for his personal problems, without committing the misconduct, which led to the separation action under review.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  


4.  Given the above, the applicant provided insufficient evidence to mitigate his misconduct and his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 26 January 1983.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 25 January 1986.  However, 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

__wdp___  __pms___  __jlp___  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 D. Powers
______________________
          CHAIRPERSON

INDEX

CASE ID
AR20060011781
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19780803
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.