RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060012138 


	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.


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	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.

2.  The applicant provides no argument and no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 16 March 1981.  The application submitted in this case is dated 
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.  The applicant’s record shows he initially enlisted into the Army National Guard for a period of 6 years on 9 June 1977.  

4.  The applicant's Military Personnel Record Jacket (MPRJ) contains Headquarters, First United States Army, Fort George G. Meade, Maryland, General Orders Number 145-13, dated 14 August 1979.  This document ordered the applicant to active duty for a period of 19 months and 10 days, effective 
3 October 1979.  

5.  The applicant's record shows he was trained in, awarded, and served in military occupational specialty (MOS) 76W (Petroleum Supply Specialist) and that the highest rank he attained while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  On 3 October 1979, while assigned to the United States Army Reception Center, Fort Dix, New Jersey, the applicant went absent without leave (AWOL) and remained away for 34 days until returning to military control on 6 November 1979.
7.  A Criminal Investigation Division (CID) Report of Investigation, dated 
8 January 1981, shows sufficient admissible evidence was found against the applicant for successful prosecution for larceny.  Based on this report, the applicant had charges preferred against him for violation of Article 121 of the Uniformed Codes of Military Justice (UCMJ) for larceny.

8.  On 25 February 1981, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request, he acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all Veterans Administration (VA) benefits, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge

9.  On 6 March 1981, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge.  On 16 March 1981, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, administrative discharge conduct triable by 
court-martial.  It further shows that at the time, he had completed a total of 
1 year, 4 months, and 10 days of creditable active military service and that he had accrued 34 days of time lost due to AWOL.  

10.  On 8 August 1986, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable and it voted to deny his request for a change to the characterization of his service and/or the reason for his separation.  

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 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.  The regulation does allow the issue of a general, under 
honorable conditions discharge or an honorable discharge if the separation authority determines is warranted based on the member's overall record of service.  However, a discharge UOTHC is normally considered appropriate.  

12.  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 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 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's request to have his UOTHC upgraded was carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  By regulation, an UOTHC discharge is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  

3.  In this case, the applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  Therefore, his overall record of service did not support a GD or HD at the time of his discharge, and it does not support an upgrade of his discharge at this late date.   

4.  The evidence of record confirms the applicant 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 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.  It also shows he was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UOTHC, which is consistent with regulatory policy.

5.  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.  

6.  Records show the applicant exhausted administrative remedies on this issue when his case was last reviewed by the ADRB on 8 August 1986.  Thus, the time for him to file a request for correction of any error or injustice expired on 7 August 1989.  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

___x  _  ___x _  __x__  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.



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          CHAIRPERSON


INDEX

CASE ID
AR20060012138
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/27
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1981/03/16
DISCHARGE AUTHORITY
AR 635+200. . . . .  
DISCHARGE REASON
Ch 10
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.