RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060011846 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Larry C. Bergquist

Member

Ms. LaVerne M. Douglas

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 discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was guilty of being absent without leave (AWOL) and was young and immature at the time of his discharge.  He continues that he went AWOL 3 months before his discharge and now realizes that it was a bad decision.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 December 1982, the date of his discharge.  The application submitted in this case is dated 7 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.  The applicant's record shows he enlisted in the Regular Army on 8 January 1980, with parental consent at the age of 18, for a period of three years.  Records show that he completed one station unit training and that the highest rank he attained while serving on active duty was specialist/pay grade E-4.  

4.  The applicant’s records do not show any significant acts of valor during his military service.

5.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 September 1981, for stealing a cassette tape on or about 28 August 1981; on 1 December 1981, for unlawfully entering an apartment on or about 7 November 1981; and on 26 January 1982, for wrongfully appropriating property on or about 18 January 1982. 
6.  On 15 November 1982, charges were preferred against the applicant for being AWOL from on or about 29 July 1982 through on or about 9 November 1982.

7.  On 15 November 1982, 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, 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.  

9.  On 1 December 1982, the separation authority approved the applicant’s request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 13 December 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 2 years, 7 months, and 22 days of creditable active military service and that he accrued 104 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which 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 trail by court-martial.  A 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was young and immature at the time of his discharge.

2.  Records show that the applicant was only 18 years of age at the time of his enlistment.  However, he was 20 years old at the time of his indiscipline.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows that he was punished under Article 15 of the UCMJ for stealing a cassette tape, unlawfully entering an apartment, and wrongfully appropriating property.  His record of service also shows that he accrued 104 days of lost time due to AWOL.  Additionally, his records do not indicate any significant acts of valor.



5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 December 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 December 1985.  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

_LMD___  __LCB___  _TSK___   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.




__ __Ted S. Kanamine________
          CHAIRPERSON



INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.