RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060013693 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Samuel Crumpler

Chairperson

Mr. Robert Rogers

Member

Mr. Patrick H. McGann Jr.

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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he did not receive legal representation and that scare tactics were used against him.  The applicant further states at that time he was having marital problems with his wife.  He continues that he bought some hashish that he really did not want and tried to get his money back to send it home to his wife.  He further states that a fellow he thought was a tourist agreed to pay the amount for which he purchased the hashish, but the tourist was an undercover policeman.  

3.  The applicant states that he was very immature at the time and was having serious problems with his wife.  He states that he was not a drug dealer and that he was only trying to get his money back.    

4.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 April 1981.  The application submitted in this case is dated 10 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 was inducted into the Army on 16 March 1967 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 19E (Armor Crewman).  

4.  On 30 July 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his prescribed place of duty.

5.  On 29 August 1979, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) for the period 11 August 1979 through 
13 August 1979.

6.  The court-martial charge sheet is not available.

7.  The applicant's request for discharge for the good of the service packet is not available.

8.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 214 shows that he was discharged on 8 April 1981 under the provisions of chapter 
10 of Army Regulation 635-200 (Personnel Separations) by reason of "ADMIN DISCHARGE CONDUCT TRIABLE BY COURT MARTIAL" with a characterization of under other than honorable conditions.  The applicant completed 3 years and 16 days of creditable active service with 3 days of lost time.

9.  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 under other than honorable conditions is normally considered appropriate.

10.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not receive proper legal representation nor was there any evidence presented during his trial.  There is no evidence in the applicant's service records and the applicant has provided no evidence that supports this contention.  

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 April 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 April 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

__SC ___  __RA ___  ___PHM_  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.




____ Samuel Crumpler___
          CHAIRPERSON



INDEX

CASE ID
AR20060013693
SUFFIX

RECON

DATE BOARDED
3 APRIL 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.0133.0000
2.

3.

4.

5.

6.