RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20070001634 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John N. Sloane

Chairperson

Mr. David K. Haasenritter 

Member

Ms. LaVerne M. Douglas

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, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states, in effect, that his UOTHC discharge should be upgraded. 

3.  The applicant provides no additional documentation in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 May 1990, the date of his discharge.  The application submitted in this case is dated 16 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 record shows he enlisted in the Regular Army on 21 June 1978.  The applicant successfully completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Lee, Virginia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 76D, Materiel Supplyman.  He was promoted to staff sergeant (SSG/E-6) effective 6 August 1987.

4.  On 21 April 1989, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for operating a passenger car, while drunk.  His punishment consisted of a reduction to pay grade E-5 (suspended until 19 August 1989) and a forfeiture of pay.

5.  The applicant was reduced to pay grade E-5 on 25 October 1989.

6.  Charges were preferred against the applicant on 27 March 1990, for the wrongful appropriation of a government weapon and for wrongful appropriation of three weapons belonging to a Brigadier General (BG).  
7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 which shows that on 15 May 1990, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He was furnished an UOTHC discharge, in the pay grade of E-1.  He had a total of 11 years, 10 months, and 25 days of creditable service.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

9.  Army Regulation 635-200 sets forth the basic authority for 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

10.  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.

11.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.
2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  It is apparent that his discharge was based on his several incidents of misconduct, which included nonjudicial punishment for operating a passenger car while drunk, and charges of the wrongful appropriation of a government weapon and the wrongful appropriation of three weapons, belonging to a BG.  Therefore, there is insufficient basis to support his request for an upgrade of his UOTHC 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 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 should have discovered the alleged error or injustice now under consideration on 15 May 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 May 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

__LD____  __DKH__  ____S___  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 N. Sloane________
          CHAIRPERSON




INDEX

CASE ID
AR20070001634
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070717
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19900515
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.