RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070001198 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn II

Member

Mr. Michael J. Flynn

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 honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he was young and it was his fault that he was discharged.  He states that he is now employed and since 1982, he has had no legal problems.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 October 1977 and a DD Form 214 (Report of Separation from Active Duty) for the period ending 21 June 1982.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 21 June 1982.  The application submitted in this case is dated 12 January 2007.

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 military records show that he initially entered active duty on  
19 October 1973.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS)  
11B2O (Infantryman).  He served as an Infantryman until he was honorably discharged on 6 October 1977.

4.  He immediately reenlisted on 7 October 1977, and served in MOS  
57E1O (Laundry and Bath Specialist) until he was discharged under other than honorable conditions.  

5.  The applicant's discharge packet was not included in his records.  However, the DD Form 214 he was issued shows he was reduced to private/pay grade  
E-1 and was discharged under other than honorable conditions for conduct triable by court-martial on 21 June 1982.  He had completed a total of 4 years,  
8 months, and 15 days of Net Active Service This Period.
6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

7.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

8.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his under other than honorable condition discharge be upgraded to an honorable discharge.

2.  The applicant's statement that he was young and it was his fault he was discharged and he is now employed with no legal problems since 1982, is noted. However, this is not sufficient to warrant a change to a properly issued discharge.

3.  The Board must review a case with a presumption of regularity, that what the Army did was correct.  It is up to the applicant to prove otherwise.  The applicant has not submitted any documentation to overcome the presumption of regularity.

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, he is not entitled to either an honorable or a general discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 June 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
20 June 1985.  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

___mjf___  ___rjo___  ___jtm_ _  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
AR20070001198
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070719
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.