RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060012770 


	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

Mr. Paul Wright

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine I. Fields

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 his discharge be changed to an Honorable Discharge. 

2.  The applicant states he was told after "so many years" his discharge would be changed to Honorable.  Additionally, he adds he would like to have some benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 April 1978.  The application submitted in this case is dated 1 July 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.  On 31 March 1976, the applicant enlisted in the Regular Army for a period 3 years.  He completed Basic Combat Training (BCT) and Advanced Individual Training (AIT).  Upon graduation, he was awarded military occupational specialty (MOS) 16R1O, Short Range Air Defense Artillery Crewman.  After completion of AIT, he was assigned to Germany.

4.  On 11 October 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for willfully disobeying a lawful command of an officer on 28 August 1977 and for failing to go to his appointed place of duty, 0630 hours formation.  Punishment included reduction to pay grade E-1, forfeiture of $100.00 for 1 month, and extra duty and restriction for a period 14 days.


5.  On 28 October 1977, the applicant accepted NJP for failing to go to his appointed place of duty (Guard Duty) on 8 October 1977 and for being absent from duty from 6 October 1977 to 7 October 1977.  Punishment included reduction to pay grade E-1, forfeiture of $198.00 per month for 2 months, and extra duty and restriction for 45 days.  The applicant appealed his punishment on 17 November 1977.  On 6 December 1977 his appeal was denied.

6.  On 15 December 1977, the applicant accepted NJP for being absent from his unit from 7-9 December 1977 and for failing to go to his appointed place of duty (Guard Duty) on 26 November 1977.  Punishment included forfeiture of $198.00 per month for 2 months (suspended for 6 months) and extra duty and restriction for 45 days (suspended for 6 months).

7.  The applicant was charged on 3 March 1978 by a Special Court-Martial for two specifications of possessing a spoon with amphetamine residue and possession of 7 hypodermic needles and 4 hypodermic syringes on 20 January 1978, one specification of possession of 2 foil packets containing marijuana in the hashish form on 25 January 1978, and two specifications for being absent without leave (AWOL) from 19 December 1977 to 20 January 1978 and from
21-25 January 1978.  On 30 March 1978 the Special Court-Martial proceedings were terminated by the convening authority approving the accused request for discharge for the good of the service pursuant to Chapter 10, Army Regulation (AR) 635-200 on 9 March 1978.  The charges and specifications were dismissed.

8.  The applicant's Chapter 10 discharge packet is missing from his Official Military Personnel File (OMPF).  There is only a tissue copy of the convening authority dated 9 March 1978 directing approval of the discharge with a characterization of Under Other Than Honorable Conditions.  The original discharge packet appears to have been loaned to the Department of Veterans Affairs Regional Office located in Chicago, Illinois on 19 June 1978.

9.  On 3 April 1978, the applicant was discharged with an Under Other Than Honorable Conditions discharge.  He had 2 years and 3 days of active Federal creditable service.  

10.  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, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been 
preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within that Board's 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The facts surrounding the applicant's discharge are unavailable.  Therefore, this Board presumes administrative regularity in the processing of the applicant's discharge.  There is nothing in the available records or in anything submitted by the applicant to overcome that presumption.  

2.  The U.S. Army does not have, nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 149 requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

3.  Eligibility for veterans' benefits does not fall within the purview of the Army.  This Board does not grant relief by upgrading a discharge characterization solely for the purpose of enabling a person to take advantage of Department of Veterans Affairs benefits.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 April 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 April 1981.  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

__klw___  __lmd___  __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
AR20060012770
SUFFIX

RECON

DATE BOARDED
20070410
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19780403
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.