RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012606 


	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 discharge be upgraded.

2.  The applicant states he was unjustly treated, he served almost his entire enlistment, and he requires an upgrade for medical reasons.

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 2 April 1979.  The application submitted in this case is dated 22 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 enlisted in the Regular Army for 3 years on 2 August 1976.  He took Basic Training at Fort Jackson, SC and Advanced Individual Training at Fort Gordon, GA as a radio teletype operator.  His first permanent duty assignment was in Germany.

4.  The record reflects that the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on at least two occasions.  On 20 November 1976 at Fort Gordon, he failed to go to his place of duty.  The punishment imposed was a forfeiture of $50 pay and 7 days of extra duty.  On 27 April 1978 in Germany, he shoplifted 3 cans of beer from the Post Exchange.  His punishment was a suspended reduction to Private/E-2, forfeiture of $50 pay, and restriction and extra duty for 15 days.

5.  The applicant had a history of belligerence and assaultive behavior.  On 28 September 1978, he allegedly struck a female Private on her face with his open hand and threatened to kill her.  He then allegedly threatened to kill her 

friend, a male Private First Class.  On 17 October 1978, he did not sign the mess hall headcount sheet and went straight to the serving line.  When he was asked to sign the headcount sheet, he became angry and struck the Soldier performing headcount duty.

6.  On 11 January 1979, court-martial charges were preferred against the applicant for striking the headcount Soldier and the female Private, and for threatening to kill the female Private and her male friend (Private First Class).

7.  On 12 March 1979, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged that he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He submitted a statement in his own behalf outlining why he felt he deserved an honorable discharge.

8.  On 17 March 1979, the general court-martial convening authority accepted the applicant's request for discharge in lieu of trial and directed he be reduced to Private/E-1 and issued an under other than honorable conditions discharge.

9.  The applicant was transferred to Fort Dix, NJ for separation processing.  On 2 April 1979, he was discharged under other than honorable conditions.  He had 2 years, 8 months, and 1 day of creditable service.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  

11.  On 2 February 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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 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 did almost complete his 3-year enlistment; however, he had a series of disciplinary problems which began in Advanced Individual Training at Fort Gordon and followed him to his first duty assignment in Germany.

2.  The applicant exhibited assaultive behavior towards his fellow Soldiers.  Court-martial charges were preferred against him for assault.  After consulting with legal counsel and being apprised of the possible outcome at a court-martial, he voluntarily, and in writing, requested discharge in lieu of trial by court-martial.

3.  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.

4.  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 could have received.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 2 February 1982.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 1 February 1985.  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

__jtm___  __tmr___  __rmn___  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.



							John T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012606
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790402
DISCHARGE AUTHORITY
AR 635-200 C10  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.