RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060015481 


	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

Mrs. Phyllis M. Perkins

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Patrick H. McGann, Jr.   

Member

Ms. Karmin S. Jenkins

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.

2.  The applicant states that it is unjust to continue to suffer the adverse consequence of his discharge after so many years. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 14 July 1983, the date of his discharge from active duty.  The application submitted in this case is dated 24 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's service personnel records show he enlisted in the Regular Army on 25 July 1973 for a period of three years.  The applicant reenlisted on 28 October 1976 and served continuously until his discharge on 14 July 1983.   Records show he served in military occupational specialty (MOS) 19D10 (Calvary Scout).

4.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for failure to go to appointed place on 1 April 1982 and for disobeying a lawful order on 27 March 1982.




5.  On 5 August 1982, the applicant was indicted by the El Paso County District Court (Texas) on charges of sexual abuse. 

6.  On 14 December 1982, the El Paso County District Court placed the applicant on probation for a period of 10 years.   

7.  Records show that the applicant's records were considered by a Board of Officers which convened on 26 May 1983.  The Board of Officers found the applicant was undesirable for further retention in the military service because of commission of a serious offense, conviction by civil authorities, and that rehabilitation was not deemed possible.  The Board of Officers recommended that the applicant be discharged under the provision of chapter 14 of Army Regulation 635-200 (Personnel Separations) due to misconduct with issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  The applicant's records contain a written statement in response to the findings of the Board of Officers.  In his statement, the applicant contends that he did not "receive a fair deal" at his Board of Officers hearing because his defense counsel was the girlfriend of his commanding officer.  

9.  The applicant's service personnel records do not contain the specific facts and circumstances surrounding his separation processing.  The applicant's records include a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows on 14 July 1983, the applicant was separated under the provisions of chapter 14, section II of Army Regulation 635-200, by reason of civil conviction and was given an under other than honorable condition discharge.  The applicant authenticated this document with his signature in item 21 (Signature of Members being Separated).  

10.  On 25 October 1984, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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

13.  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.

14.  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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant's service personnel records are void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  Absent any evidence that the applicant's discharge was not proper and equitable, Government regularity must be presumed in this case.  

3.  Based on the nature of the applicant's indiscipline and the fact that he was indicted by the El Paso County District and placed on probation for 10 years, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to a general or an honorable discharge.

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 requirement.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 25 October 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 24 October 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

__KLW___  __PHM__  _KSJ___  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.




_Kenneth L. Wright___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.