RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   5 April 2007
	DOCKET NUMBER:  AR20060012091 


	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, who was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu to Trial by Court-Martial), requests that his discharge under other than honorable conditions be upgraded to an honorable discharge. 

2.  The applicant essentially states that he served his country until his expiration of term of service (ETS), and that it has been over two and a half decades since he served.  He also asks, in effect, that his discharge be overturned so that he can consider himself an honorable Soldier who served his country.

3.  The applicant provides his last DD Form 214 (Certificate of Release or Discharge From Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 June 1983, the date of his discharge from the Regular Army.  The application submitted in this case is dated 13 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 military records show that he served in the Regular Army from July 1973 to July 1976, then was honorably released from active duty and transferred to the United States Army Reserve.  On 15 May 1979, the applicant reenlisted in the Regular Army.  He completed basic and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).  

4.  Between 5 December 1980 and 22 March 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions.  His offenses essentially included being absent without authority with intent to avoid after field cleanup, twice failing to obey a lawful order, wrongful possession of marijuana, and twice failing to go at the time prescribed to his appointed place of duty.  Collectively, his punishment consisted of three reductions in rank (one suspended for 60 days), forfeiture of $525.00, extra duty for 42 days, restriction for 21 days, and 7 days of performance at the Fort Bragg, North Carolina Correctional Custody Facility.  He was also convicted by a summary court-martial on 27 January 1982 for wrongful possession of approximately 6 grams of marijuana.  He was sentenced to reduction in rank from private first class/pay grade E-3 to private/pay grade E-1, forfeiture of $366.00 per month for 1 month, and confinement at hard labor for 
30 days.

5.  On or about 9 June 1983, charges were preferred against the applicant for wrongful possession of approximately 6.24 grams of marijuana on 11 May 1983. 

6.  On 16 June 1983, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of at least one of the charges against him or of a lesser-included offense, which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

7.  In his request for discharge, the applicant acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

8.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant elected not to submit a statement on his own behalf.  

9.  On 21 June 1983, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant would be reduced to the lowest enlisted grade.  On 28 June 1983, the applicant was discharged accordingly.  

10.  On 19 December 1983, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

11.  The applicant contends that his discharge should be upgraded because he served his country until his ETS, and that it has been over two and a half decades since he served.  He also asks, in effect, that his discharge be overturned so that he can consider himself an honorable Soldier who served his country.

12.  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 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.

13.  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.

14.  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.

15.  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 applicant contends that his discharge under other than honorable conditions should be upgraded.

2.  Although the applicant contends his discharge should be upgraded because he served his country until his ETS, and that it has been over two and a half decades since he served.  He also asks, in effect, that his discharge be overturned so that he can consider himself an honorable Soldier who served his country.  However, the applicant’s record of misconduct shows, without question, that his service was not honorable.

3.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows that had was convicted by a summary court-martial and accepted NJP under Article 15 of the UCMJ on five occasions. He also voluntarily requested discharge from the Army in lieu of trial by court-martial.  Based on this 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, he is not entitled to either a general discharge or an honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 19 December 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 18 December 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

__LS____  ___JR___  ___SF __  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.




_____ Linda Simmons_______
          CHAIRPERSON




INDEX

CASE ID
AR20060012091
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19830628
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7400.0000
2.

3.

4.

5.

6.