RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060016976 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Margaret Patterson

Chairperson

Mr. Ronald Gant

Member

Mr. Rowland Heflin

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 general discharge be upgraded to honorable.

2.  The applicant states, in effect, that his discharge should be upgraded for the following reasons:  (1) under current standards he would not have received the type of discharge he did; (2) that his first discharge was honorable; (3) that his conduct and efficiency ratings/behavior and proficiency marks were good; (4) that he received awards and decorations; (5) that he made it all the way to staff sergeant; (6) that he has combat service; (7) that his record of promotions show he was generally a good service member; (8) that he has been a good citizen since his discharge; (9) that his personal problems impaired his ability to serve; (10) that he was suffering from emotional and mental issues; (11) that he tried to serve and wanted to but just could not or was not able to; (12) that he could not adjust to stateside duty when he got back from overseas duty; and (13) that he should have received a medical discharge because he was not medically qualified to serve.   

3.  The applicant provides documentation from the Department of Veterans Affairs (DVA) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 March 1982.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 March 1982.  The application submitted in this case is dated 28 November 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.  Having prior service in the U.S. Marine Corps which included a tour in Vietnam from 16 July 1968 to 12 August 1969, the applicant enlisted in the Regular Army on 18 September 1969 for a period of 3 years.  He served in Vietnam from 9 September 1970 to 3 September 1971.  He remained on active duty through continuous reenlistments.  On 8 February 1978, the applicant 

reenlisted for a period of 6 years.  He attained the rank of staff sergeant on 
18 September 1978.       

4.  On 29 May 1979, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order, failure to repair, and being incapacitated for duty as a result of indulgence in intoxicating liquor.  His punishment consisted of a reduction to E-5, a forfeiture of pay (suspended), restriction (suspended), and supervising extra duty.

5.  The applicant went absent without leave (AWOL) on 29 December 1981 and returned to military control on 5 February 1982.  On 16 February 1982 charges were preferred against the applicant for the AWOL period.  
 
6.  On 24 February 1982, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an undesirable (sic) discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable (sic) discharge.  He elected to make a statement in his own behalf.  However, this statement is not available.

7.  On 8 March 1982, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 10 March 1982 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 14 years and 4 days of creditable active service with 38 days of lost time due to AWOL.

9.  There is no evidence in the available records which shows the applicant was diagnosed with any mental or medical condition prior to his discharge. 

10.  On 11 March 1983, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to a general discharge. 

11.  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.  A discharge under other than honorable conditions (previously characterized as “undesirable”) is normally considered appropriate.

12.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.  

14.  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.

15.  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.  The evidence of record does not support the applicant's contention that under current standards he would not have received the type of discharge he did.  The current governing regulation states that an individual discharged in lieu of trial by court-martial would normally be furnished a discharge under other than honorable conditions.  The ADRB upgraded his discharge under other than honorable conditions to a general discharge.  

2.  Good post service conduct alone is not normally a basis for upgrading a discharge. 

3.  Personal problems are not grounds for upgrading a discharge.  There is no evidence the applicant sought assistance from other sources, such as the chaplain, or a way to resolve his problems within established Army procedures.

4.  Although the applicant contends that he had emotional and mental issues and that he should have received a medical discharge because he was not medically qualified to serve, there is no evidence of record to support these contentions.   

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.    

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  Since his last enlistment included one nonjudicial punishment and a 38-day AWOL offense that led to referral of a court-martial charge, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 11 March 1983.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 10 March 1986.  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

MP____  __RG____  _RH_____  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.


__Margaret Patterson__
          CHAIRPERSON




INDEX

CASE ID
AR20060016976
SUFFIX

RECON

DATE BOARDED
20070614
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19820310
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.