RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012358


	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 his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states he regrets all that happened and accepts full responsibility.  He accepted a chapter 10 discharge, but believes the discharge was inequitable based on one incident in over 48 months of service.  Since his discharge, he has been a Federal civil servant.  He recently returned from a
1-year tour of duty with the US Army Corps of Engineers in Ramadi, Anbar Province, Iraq.  He now works for Headquarters, United States Marine Corps, Navy Annex in Arlington, VA.  He asks that his years of civil service be taken into account in reviewing his discharge.  He adds he was awarded the Superior Civilian Service Award.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 October 1986.  The application submitted in this case is dated 1 September 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 served in the Regular Army from 9 August 1978 until he received an UOTHC discharge on 24 October 1986.  The applicant was a Construction Equipment Repairer and a Nuclear/Biological/Chemical (NBC) Specialist.  He attained the rank of Sergeant.

4.  The applicant served in Germany in 1986.  He developed financial problems related to missed credit payments, dishonored checks, and failure to pay debts.  He was counseled and a bar to reenlistment was placed against him.

5.  The applicant's personal life came to the attention of his chain of command when he assaulted his wife on 4 September 1986.  On 5 September 1986, he disobeyed a lawful order when he committed an aggravated assault upon his wife.

6.  Court-martial charges were preferred against the applicant.  After consulting with legal counsel, the applicant, on 24 September 1986, requested discharge for the good of the service in lieu of trial by court-martial.  His request was forwarded through his chain of command with recommendations for approval.  On 10 October 1986, the approving authority accepted the applicant's request and directed that he be reduced to Private (PVT/E-1) and discharged under other than honorable conditions.

7.  On 24 October 1986, the applicant was issued an UOTHC discharge.  He had 8 years, 2 months, and 16 days of creditable active Federal service and no lost time.  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was awarded the Army Good Conduct Medal (2nd Award), Army Service Ribbon, Overseas Service Ribbon, NCO Professional Development Ribbon with Numeral 1, the Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars, and the Driver and Mechanic Badge with Driver-W Bar.

8.  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.  A discharge under other than honorable conditions is normally considered appropriate.

9.  There is no record of the applicant's civilian service.

10.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 2 November 1989, denied his request.

11.  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 appears to have been a good Soldier who ran into financial problems which then strained his marriage.  He assaulted his wife and apparently received an order from his commander related to his marital situation.  He disobeyed that order and committed an aggravated assault upon his wife the day after assaulting her.  Court-martial charges were appropriately preferred against him.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The applicant long and honorable civil service, including service in Iraq, is a mitigating factor; however, he has not provided any evidence to support his statement of such service.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 2 November 1989.  As a result, the time for the applicant to file a request for correction of any error injustice to this Board expired on 1 November 1992.  The applicant did not file within the ABCMR's 3-year statute of limitations and has not provided 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

__klw___  __cad___  __eif___  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.



						Kenneth L. Wright
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012358
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19861024
DISCHARGE AUTHORITY
AR635-200 C10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.