RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014864 


	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. John T. Meixell

Chairperson

Mr. Thomas H. Ray

Member

Ms. Rea M. Nuppenau

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 that his under other than honorable conditions discharge be upgraded to a general under honorable conditions or honorable discharge. 

2.  The applicant states, in effect, he needs his discharge upgraded to obtain medical treatment from the Department of Veterans Affairs.  The applicant states that he was accused of possession of marijuana but it belonged to another Soldier with whom he shared a barracks room.  He continues that the Soldier confessed to the possession of marijuana and that he (the applicant) was also charged.  

3.  The applicant provides no additional documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 April 1978.  The application submitted in this case is dated 14 October 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 3 September 1976.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  

4.  On 2 March 1977, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for falsely claiming that his money orders had been stolen.

5.  On 12 May 1977, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) for the period from 0630 hours 4 May 1977 to 2000 hours 5 May 1977.

6.  On 18 October 1977, the applicant accepted NJP under Article 15, UCMJ for failing to be at his prescribed place of duty.

7.  On 14 February 1978, the applicant accepted NJP under Article 15, UCMJ for wrongful possession of marijuana.

8.  A DD Form 458 (Charge Sheet), dated 2 March 1978, shows charges were preferred against the applicant for wrongful possession of marijuana, for selling a military field jacket without proper authority, and for failing to be at his prescribed place of duty.

9.  A DD Form 458, dated 23 March 1978, shows an additional charge was preferred against the applicant for being AWOL for the period 6 March 1978 through 16 March 1978.

10.  On 30 March 1978, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge.  He did not submit statements on his own behalf.

11.  On 5 April 1978, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge and be reduced to the lowest enlisted grade.  On 10 April 1978, the applicant was discharged with an under other than honorable conditions discharge.  He had completed 1 year, 6 months, and 27 days of creditable active service with 11 days of lost time due to AWOL.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 21 August 1984, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable.


13.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable discharge is normally considered appropriate.

14.  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.  

15.  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.

16.  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.  Unfortunately, the ABCMR does not correct records solely for the purpose of obtaining eligibility for VA benefits.  




2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he received four Article 15s and had two instances of AWOL during his enlistment.  The misconduct for which he was separated involved possession of marijuana, the unauthorized selling of government property, failing to be at his appointed place of duty, and AWOL.  He had completed 1 year, 6 months, and 27 days of creditable active service with 11 days of lost time.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 21 August 1984.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 20 August 1987.  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

__JTM __  __THR __  ___RMN_  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.




_____John T. Meixell         _
          CHAIRPERSON




INDEX

CASE ID
AR20060014864
SUFFIX

RECON

DATE BOARDED
17 APRIL 2007
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

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

3.

4.

5.

6.