RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060015519 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 general, under honorable conditions.

2.  The applicant states that he was told his discharge would be upgraded to general after 20 years.  He also says that he never signed his Certificate of Release or Discharge from Active Duty (DD Form 214) and was never paid for his excess leave.  He further states that he wants this upgrade because he would like to reenlist someday. 

3.  The applicant provides no additional documentation to support his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 23 October 1987, the date of his discharge.  The application submitted in this case is dated 8 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.  On 18 July 1986, the applicant enlisted in the Regular Army for 3 years.  He did not complete his initial training and was not awarded a military occupational specialty. 

4.  On 10 September 1987, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, for being absent without leave from 
27 August to 9 September 1986; 11 September 1986 to 21 January 1987; and 
7 February to 7 September 1987, totaling 361 days of lost time.

5.  On 11 September 1987, 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 under other than honorable conditions discharge, and of the procedures and
rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  He also requested and was granted voluntary excess leave pending the final approval of his discharge request.  He departed on excess leave on 11 September 1987.

6.  In the applicant’s request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, 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.

7.  On 18 September 1987, the separation authority approved the applicant’s request for discharge and directed that he be discharged with an under other than honorable conditions discharge.  On 23 October 1987, the applicant was discharged accordingly.  He had completed a total of 3 months and 11 days of creditable active military service and accrued 361 days of time lost due to AWOL. The applicant’s signature is not on his DD form 214 due to his unavailability.

8.  Item 18 (Remarks) of the applicant's DD Form 214 shows that he was in an excess leave status for 43 days from 11 September to 23 October 1987.

9.  On 10 October 1995, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.


12.  Army Regulation 600-8-10 (Leaves and Passes) covers the Army’s leave and pass programs.  It prescribes the policies, operating tasks, and steps governing military personnel absences.  Paragraph 5-23 provides, in pertinent part, that Soldiers awaiting completion of administrative discharge proceedings may request an indefinite period of excess leave.  The General Court-Martial (GCM) authority, or his or her designee, is the approval authority.  Approval will be granted when it is determined that excess leave would be in the best interests of the unit to which the Soldier is attached and when leave will not interfere with timely processing or separation.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states, in pertinent part, that for Item 21 (Signature of Member Being Separated), the Soldier’s signature indicates he or she has reviewed the form and accepts the information as being correct to the best of their knowledge.  However, when a Soldier is not available (discharged in absentia or physically unable), enter “SOLDIER UNAVAILABLE TO SIGN.”

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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's record is devoid of any redeeming service.

3.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of any discharge from military service.

5.  The applicant's contention that he did not sign the DD Form 214 is true.  However, based on his voluntary excess leave status, he was physically unavailable to sign the form.  As such, the appropriate remark was annotated in place of his signature.  The absence of the applicant’s signature has no bearing on the document's validity.

6.  There is no available evidence upon which to make a determination of the applicant's contention that his pay is incorrect as a result of his excess leave status during the period 11 September – 23 October 1987.  

7.  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 the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

9.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 10 October 1995.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 9 October 1998.  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

__DED__  __WDP__  __WFC__  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.




__    William D. Powers___
          CHAIRPERSON




INDEX

CASE ID
AR20060015519
SUFFIX

RECON
 
DATE BOARDED
20070426 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19871023
DISCHARGE AUTHORITY
AR 635-200, Ch 10. . . . .  
DISCHARGE REASON
GOS
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.