RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 march 2007
	DOCKET NUMBER:  AR20060013615 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general discharge, under honorable conditions.

2.  The applicant states, in effect, that he got into trouble in the military on two drug charges.  He has been able to stay clean.  He made two bad mistakes in the military and has paid for it with his bad discharge (sic UOTHC discharge).  He now feels like he has turned his life around and requests that his discharge be upgraded. 

3.  The applicant provides no additional documentation in support or his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 1 May 1979, the date of his discharge.  The application submitted in this case is dated 7 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's record shows he enlisted in the Regular Army on 31 August 1972, for 3 years.  His date of birth is 18 April 1953.  The applicant successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 62K, Grader Operator.  He was promoted to pay grade E-4 on 1 April 1974.  He served until he was discharged on 18 September 1974, for immediate reenlistment.

4.  The applicant reenlisted on 19 September 1974, for 6 years.



5.  On 15 August 1975, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty on 4 August 1975.  His punishment consisted of a reduction to pay grade E-3 (suspended) and 14 days extra duty.

6.  The applicant was promoted to pay grade E-5 on 19 July 1978. 

7.  Charges were preferred against the applicant on 27 February 1979, for eight counts of possession, selling, and transferring of marijuana on 22 January and 15 February 1979, which was in violation of Article 134, under the UCMJ.  On 2 March 1979, his charges were referred to a special convening court-martial authority which was empowered to adjudge a bad conduct discharge.

8.  On 5 March 1979, the applicant voluntarily submitted a request for discharge for the good of the service.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

9.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on 5 March 1979 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

10.  The applicant stated that he understood that if his request were accepted, he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge certificate.  He was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all 


benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

11.  The commanders, (company, battalion, and brigade) unanimously recommended that the applicant not be discharged under the provisions of Army Regulation 635-200, chapter 10.  The company and battalion commander reasons for their recommendation were due to the seriousness of the offense, it was not in the best interest to discharge the applicant and that he should stand trial for the charges against him.  The battalion commander added that the prosecution and imposition of maximum punishment would better assist the Army in its Drug Suppression efforts.  The brigade commander added that discharge action would not be deemed appropriate.

12.  On 19 April 1979, the applicant's case was reviewed by the Staff Judge Advocate, who recommended that the Commander, 3rd Armored Division approve the applicant's request for discharge and that an UOTHC Certificate be issued.

13.  On 19 April 1979, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge characterized as UOTHC and that he be reduced to the lowest enlisted grade.  

14.  The applicant was discharged in the rank/pay grade, Private/E-1, on 1 May 1979.  He had a total of 6 years, 8 months, and 1 day of net active service.

15.  On 19 February 1981, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  Army Regulation 635-200 sets forth the basic authority for 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.




17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

18.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  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 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, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant alleges that he got in trouble in the military on two drug charges and made two bad mistakes and paid for it with his UOTHC discharge. The evidence shows that charges were preferred against the applicant for violation of Articles134, of the UCMJ, on eight counts, for possession, selling, and transferring marijuana, which clearly shows that it was more than two mistakes.  
4.  The applicant was over the age of 25 and was serving in pay grade E-5 on active duty, on 22 January 1979, when he made his first mistake and later made the second mistake 24 days later.  The applicant was aware of the Army's Drug use policy as a noncommissioned officer and consequences regarding his misconduct of this nature.  He was old enough to know right from wrong and his acts of misconduct are not condoned by the Army.

5.  The applicant contends that he has been able to stay clean, has turned his life around, and now requests that his discharge be upgraded.  However, these contentions do not support or warrant an upgrade of his discharge UOTHC.

6.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 19 February 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 18 February 1984.  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

____e___  __MJF __  __LB ___  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.




_____Lester Echols_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013615
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790501
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.