RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 July 2007
	DOCKET NUMBER:  AR20070002719 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Scott W. Faught

Member

Ms. Ernestine L. Fields

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 be upgraded.

2.  The applicant states that when his discharge was upgraded by the Army Discharge Review Board in 1981, it was supposed to be an honorable discharge. The applicant contends he was being harassed by a sergeant that he was scheduled to testify against him in a court-martial which caused him mental stress.  The applicant concludes that this stress combined with his family problems caused him not to be able to Soldier properly.

3.  The applicant did not provide any additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 21 November 1974, the date of his discharge.  The application submitted in this case is dated12 February 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 records show that he enlisted in the Regular Army on 4 January 1973.  Records further show that he completed basic combat and advanced individual training and awarded military occupation specialty (MOS) 94A (Cook Helper).  Records show that the highest rank the applicant attained while serving on active duty was private/pay grade E-2.

4.  The applicant's records do not show any significant acts of valor during his military service.

5. The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:  on 1 May 1973, for being absent without leave (AWOL) during the period 27 April 1973 to 30 April 1973; on 27 November 1973, for being AWOL during the period 17 November 1973 to 21 November 1973; and on 15 January 1974, for being AWOL during the period 8 January 1974 to 15 January 1974.

6.  On 24 September 1975, charges were preferred against applicant for being AWOL from on or about 14 August 1974 to on or about 13 September 1974. 

7.  On 30 October 1974, 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.

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or to a lesser included offense, and that the imposition of a bad conduct discharge or a dishonorable discharge may be authorized.  He further acknowledged he understood that if the 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.  The applicant elected not to submit a statement on his own behalf.

9.  On 21 November 1974, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 21 November 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 1 year, 18 months, and 15 days of creditable active military service with 62 days of lost time due to being AWOL.

10.  On 28 April 1976, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

11.  On 13 February 1981, the Army Discharge Review Board reconsidered the applicant's request for the upgrade of his discharge and determined that the character of service should be amended to show a general under honorable conditions discharge.  The applicant's DD Form 214 was subsequently amended to reflect the applicant's new character of service.




12.  There is no evidence in the available records which show that the applicant was schedule to testify in a court-martial hearing.  Additionally, there is no evidence in the available records which show that the applicant requested assistance from appropriate military authorities concerning issues with his chain of command.

13.  There is no evidence in the available records which show that the applicant sought assistance from appropriate military personal for family problems or that family problems were the cause of his acts of indiscipline.

14.  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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  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 applicant contends that his discharge should be upgraded because he encountered harassment from a sergeant and he experienced personal family problems that caused him mental stress. 

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were as a result of either "trouble" with his chain of command or family problems.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows that he accrued 62 days of lost time due to being AWOL.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct of duty for Army personnel.   Therefore, the applicant is not entitled to an honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 13 February 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 12 February 1984.  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

_ENA_____  _EF___  __SWE__  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
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.