RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060017049 


	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. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he was told he could petition for an upgrade after a certain number of years.  Since it has not been upgraded he is now making his petition.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active duty (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 October 1990, the date of his discharge.  The application submitted in this case is dated 26 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.  On 23 July 1987, the applicant enlisted in the California Army National Guard. He was ordered to active duty for training on 27 October 1987.  He completed his initial training and was awarded military occupational specialty 12F1O (Engineer Tracked Vehicle Crewman).  On 29 March 1988, he was released from active duty for training. 

4.  On 5 October 1988, the applicant enlisted in the Regular Army for 4 years.  He was assigned for duty as a combat engineer with the 10th Engineer Battalion in the Federal Republic of Germany. 

5.  On 8 May 1989, the applicant was promoted to the rank of private first class, pay grade E3.  

6.  On 1 August 1990, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from 22 February 1990 to 17 July 1990 (146 days).

7.  On 1 August 1990, 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. 

8.  In his request for discharge, the applicant indicated that 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.   

9.  On 15 October 1990, the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.  On 29 October 1990, the applicant was discharged accordingly.  He had completed a total of 1 year 8 months and 2 days of creditable active military service and accrued 146 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.


12.  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.

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.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

3.  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.

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 October 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
28 October 1993.  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

___ena__  __auj___  __reb____  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.




__      Eric N. Andersen____
          CHAIRPERSON




INDEX

CASE ID
AR20060017049
SUFFIX

RECON
 
DATE BOARDED
20070517 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000.0000
2.

3.

4.

5.

6.