RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060012796 


	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.


x
	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 that his general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states that the general discharge was inequitable.  

3.  The applicant provides two letters of recommendation; a personal character reference; and a congratulatory letter from the Elks Fraternal Organization in Dallas, Texas.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 March 1983.  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 enlisted in the Regular Army on 2 August 1979.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He served in Germany and was promoted to sergeant on 16 August 1981.  He was honorably discharged from active duty on 18 February 1982 for the purpose of immediate reenlistment.  

4.  The applicant reenlisted on 19 February 1982 in pay grade E-5 for a period of 6 years.  

5.  On 8 February 1983, charges were preferred against the applicant for failing to go to his appointed place of duty on two separate occasions; for being absent without leave (AWOL) from 15 January 1983 to 21 January 1983 and from 22 January 1983 to 26 January 1983; for disobeying a lawful order from his superior noncommissioned officer; and for breaking restriction.  


6.  On 19 February 1983, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if a discharge UOTHC was issued.  He submitted statements in his own behalf.  He stated that he had an excellent record of service.  He stated, in effect, that he had problems in his personal life which led to his offenses.  He had attempted to resolve his personal problems.  He submitted this request for discharge based on him not having a civilian record and until now, a clean military record.  He requested that the discharge be under honorable conditions.  

7.  On 4 March 1983, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an UOTHC Discharge Certificate.  

8.  The applicant was discharged on 18 March 1983 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with a discharge UOTHC.  He had completed 1 year and 29 days of creditable active service on his current enlistment with 8 days of lost time due to AWOL.  He completed 2 years, 6 months, and 17 days of creditable prior active service.  

9.  The applicant submitted a personal character reference in support of his claim.  The individual indicated he had known the applicant for approximately 10 to 15 years and described the applicant as being conscientious, trustworthy, dependable, and dedicated in his professional life and his personal life.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 12 June 1995.  The ADRB upgraded the applicant’s discharge to general under honorable conditions on 15 September 1997 and did not change the narrative reason for 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 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 UOTHC is normally considered appropriate.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  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 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.

2.  The applicant’s service record shows he was charged with being AWOL from 15 January 1983 to 21 January 1983 and from 22 January 1983 to 26 January 1983; for disobeying a lawful order from his superior noncommissioned officer; and for breaking restriction.  

3.  The ADRB upgraded the applicant's UOTHC discharge to a general under honorable conditions discharge in September 1997.  

4.  The applicant's service did not meet the standards of honorable service as defined in Army Regulation 635-200.  Therefore, the characterization of the discharge as upgraded by the ADRB is appropriate considering all the facts of the case.  There also is no apparent error, injustice, or inequity on which to base further recharacterization of his discharge to fully honorable.

5.  The letters of support provided by the applicant were noted.  However, they are not sufficiently mitigating to warrant relief in this case.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 15 September 1997.  As a result, the time for the applicant to file a request for correction of any error injustice to this Board expired on 14 September 2000.  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

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
AR20060012796
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19830318
DISCHARGE AUTHORITY
AR635-200, chapter 10
DISCHARGE REASON
For the good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.