RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060013106 


	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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that he feels that he paid his debt for being in an excess leave status for 63 days and that his discharge should have been upgraded a long time ago.  He also states that during his active duty service, he received awards for his service in his backbreaking position as a mortar man.  He further states that he now has a family and needs the benefits accompanied with having a general or honorable discharge.

3.  The applicant provides the following documents in support of his application:  Separation Document (DD Form 214); Self-Authored Statement; Photographs; Diplomas; Completion Certificates; Official Report of Test Results – Test of General Education Development (GED); and a “Social Security Administration Letter, dated 8 May 2006.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 21 January 1982.  The application submitted in this case is dated 31 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 enlisted in the Army and entered active duty on 2 December 1980.  He completed basic combat training and advanced individual training (AIT) at Fort Benning, Georgia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).


4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments & Reductions), that he was promoted to the rank of private/E-2 (PV2) on 6 June 1981, and that this is the highest rank he held while serving on active duty.  Item 18 also shows he was reduced to the rank of private/E-1 (PV1) on 9 December 1981.

5.  Item 9 (Awards, Decorations and Campaigns) of the applicant’s DA Form 2-1 shows that during his active duty tenure, he earned the Sharpshooter Marksmanship Qualification Badge with Rifle, Hand Grenade and Mortar Bars.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains two Personnel Action(s) (DA Forms 4187) that show he departed on ordinary leave on 21 August 1981 and that his status was changed from ordinary leave to absent without leave (AWOL) on 17 September 1981.  A third DA Form 4187 shows he was dropped from the rolls (DFR) on 16 October 1981, a fourth shows he surrendered to United States Army Liaison in Long Beach, California on 29 October 1981 and changed his status from DFR to present for duty.

7.  On 4 November 1981, a Charge Sheet (DD Form 458) was prepared preferring the a court-martial charge against the applicant for violating the 
Article 86 of the Uniform Code of Military Justice (UCMJ) by departing AWOL on or about 17 September 1981.

8.  On 20 November 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200. 

9.  In his request for discharge, the applicant acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.


10.  The applicant submitted a personal statement in support of his request for discharge, in which he indicated that the reason he went AWOL was because while he was home on leave, his father being disabled, he took a job to support his family.  He further stated his mother had high blood pressure, and she was responsible for taking care of his older handicapped brother as well as two younger siblings.  He states that after having his original leave extended for a few days, he repeatedly called his unit chain of command for additional extensions, but was denied.  He also claimed that he tried to explain to his company commander that he sold his return airline ticket to support his family and that he had no means to return to service at that time.  He finally claimed that upon saving enough money to purchase a return ticket he flew to California and was later transferred to Fort Ord, California, where he was regrettably processed for discharge from the Army.

11.  On 9 December 1981, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed he receive an UOTHC discharge.  On 21 January 1982, the applicant was discharged accordingly.  

12.  The DD Form 214 issued to the applicant on the date of his separation  confirms he completed a total of 1 year and 8 days of creditable active military service and that he accrued 63 days of time lost due to AWOL.  

13.  On 22 February 1988, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.  

14.  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.  


15.  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’s contention that his UOTHC discharge should be upgraded because he has long since paid his debt was carefully considered.  However, the record shows that after having been granted ordinary leave, the applicant failed to return to his place of duty at the appointed time and he was subsequently reported AWOL, which resulted in his accruing a total of 63 days of lost time.  

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The applicant, after consulting with counsel and being advised of his rights and the effects of an UOTHC discharge, voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 

3.  The applicant voluntarily elected to request discharge in order to avoid a punitive discharge, and the UOTHC discharge he received accurately reflects the overall quality of his short and undistinguished service.  Therefore, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

4.  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 request.

5.  Records show the applicant exhausted all administrative remedies when his case was last reviewed by the ADRB on 22 February 1988.  As a result, the time for him to file a request for correction of any error or injustice expired on 
21 February 1991.  He failed to file a claim with this Board 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

__PMS __  __DKH__  __EEM __  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.




_____Paul M. Smith______
          CHAIRPERSON




INDEX

CASE ID
AR20060013106
SUFFIX

RECON
NO
DATE BOARDED
2007/05/01
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1982/01/21
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Admn Dsch Conduct Triable by CM
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000
2.

3.

4.

5.

6.