RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  12 July 2007
	DOCKET NUMBER:  AR20070002799 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jose A. Martinez

Member

Mr. William F. Crain

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 than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states that he received an honorable discharge for his first tour of service and that his service record does not reflect his first honorable characterization of service. 

3.  The applicant provides a personal statement in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 16 December 1983, the date of discharge.  The application submitted in this case is dated 2 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 he enlisted in the Regular Army on 8 January 
1980.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 76Y (Unit Supply Specialist).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

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 that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 8 August 1983 for wrongful possession and use of marijuana between 4 July 1983 and 18 July 1983, and for dereliction of duties on 29 July 1983.  He was sentenced to forfeiture of $150.00 for one month which was suspended until 7 February 1984; 7 days extra duty; 
and 14 days restriction suspended until 7 February 1984.  On 24 August 1983, the forfeiture of $150.00 pay was vacated for failure to be at his appointed place of duty on 17 August 1983.

6.  On 28 September 1983, the applicant accepted NJP under the provision of Article 15, UCMJ, for failure to go to his appointed place of duty on 18 September 1983 and disobeying lawful orders of superior noncommissioned officers on 16 and 18 September 1983.  He was sentenced to reduction in grade to private/pay grade E-2, forfeiture of $150.00, $75.00 of which was suspended, if not vacated by 27 March 1984; extra duties for 14 days, suspended or automatically remitted if not vacated before 27 March 1984.

7.  On 22 November 1983, the applicant was charged with being absent without leave (AWOL) for the period on or about 14 November 1983 to 19 November 
1983; for wrongfully possessing cocaine on or about 14 July 1983; for wrongfully distributing cocaine on or about 14 July 1983; for using cocaine on or about
14 July 1983; for wrongfully possessing lysergic acid diethylamide (LSD) on or about 14 July 1983; and for wrongfully distributing LSD on or about 14 July 1983.

8.  On 6 December 1983, 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.

9.  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 of 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.

10.  On 12 December 1983, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge. 


11.  On 16 December 1983, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged with an under other than honorable conditions discharge.  This form further confirms that he completed a total of 3 years, 11 months, and 4 days of creditable active military service, and that he accrued 5 days of time lost due to AWOL.

12.  On 18 February 1988, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. 

13.  The applicant provided a personal statement stating that his first enlistment tour was honorable.  The applicant continues that he reenlisted for an overseas tour option, specifically for an assignment in Hawaii.  The applicant contends that he is currently incarcerated and will be released within the year.  The applicant concludes that he is requesting upgrade of his discharge in order to obtain veterans and unemployment benefits.

14.  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 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.  At the time, a general or under other than honorable conditions discharge was 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16. 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.


17. 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 his first period of service was honorable and his current record of service does not reflect his honorable service for his first enlistment. 

2.  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.  Records show 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.

3.  The applicant's record of service shows that he accepted nonjudicial punishments under the provisions of Article 15 of the UCMJ for wrongful possession and use of marijuana; dereliction in performance of his assigned duties; sleeping while on duty; and failure to obey lawful orders of his superiors.  The service record further shows he was charged with wrongful possession, distribution, and use of cocaine, a controlled substance; wrongful possession and distribution of LSD, a controlled substance; and being AWOL.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service as unsatisfactory.  Therefore, the applicant is not entitled to a general or 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 18 February 1988.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 17 February 1991.  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

_JAM_ ___  _JEA_  ___WFC__   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.




James E. Anderholm__
          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.