RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 7 August 2007
DOCKET NUMBER: AR20070003125
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. Michael L. Engle
Analyst
The following members, a quorum, were present:
Ms. Linda D. Simmons
Chairperson
Ms. Ernestine I. Fields
Member
Mr. Randolph J. Fleming
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 under other than honorable conditions be upgraded to honorable.
2. The applicant states, in effect, that he had no record of drug use and never will have such a record. He was at the restaurant with his wife for her birthday and was arrested when he went into the restroom. He further states that he was young at the time and did not care to fight the courts. Now he is older and it is bothering him.
3. The applicant provides a copy of the Criminal Investigation Command's final report.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 31 October 1985, the date of his discharge. The application submitted in this case is dated 7 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 applicants failure to timely file.
3. On 4 August 1983, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty 76V1O (Material Storage and Handling Specialist).
4. On 29 October 1984, the applicant received a Letter of Reprimand (LOR) for having a blood alcohol test result of .10 percent or higher on 25 August 1984 while operating a motor vehicle. The LOR was given as an administrative action and was not punishment under the Uniform Code of Military Justice. The LOR was filed in his Military Personnel Records Jacket.
5. On 1 June 1985, the applicant was promoted to the rank of specialist four, pay grade E4.
6. On 8 August 1985, the applicant was apprehended by an agent of the United States Army Criminal Investigation Command for wrongful possession and distribution of marijuana. He was read his rights which he refused to waive. He made no statement.
7. The discharge packet is missing from his military records. However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was administratively discharged on 31 October 1985, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service. His service was characterized as under other than honorable conditions. He had completed 2 years, 2 months, and 28 days of creditable active duty.
8. 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.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.
2. 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.
3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 October 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
30 October 1988. 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
_RJF____ __EF___ __LDS___ 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.
__Linda D. Simmons_
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.
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