RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 August 2007
	DOCKET NUMBER:  AR20070003671 


	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:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine R. Moya

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 under honorable conditions be upgraded to honorable.  

2.  The applicant states, in effect, that his discharge should be upgraded because the punishment was too harsh. 

3.  The applicant provides no additional documentation. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 9 May 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 52D1O (Power Generation Equipment Repairer). 

3.  On 24 August 1988, the applicant was promoted to staff sergeant, pay grade E6.  

4.  The applicant served through a series of assignments and was awarded three Army Achievement Medals, three Army Good Conduct Medals, and the Air Assault Badge.  He completed the Primary Leadership Development Course, Basic Noncommissioned Officer Course, and the Advance Noncommissioned Officer Course. 





5.  On 25 May 1993, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, for being absent without leave (AWOL) from 
21 to 22 January 1993; and twice for failure to go to his appointed place of duty 

on 25 January 1993 and on 16 April 1993.  The applicant was also charged with violation of Article 91, for willfully disobeying a lawful order on or about 
22 January 1993; and for violation of Article 112a, for wrongful use of cocaine.  

6.  On 8 July 1993, 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. 

7.  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 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.   

8.  On 12 July 1993, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Discharge Certificate.  On 20 August 1993, the applicant was discharged accordingly.  He had completed a total of 9 years, 3 months and 12 days of creditable active military service.

9.  On 31 May 1997, the Army Discharge Review Board determined that the applicant’s generally acceptable personal conduct and performance of duty mitigated the discrediting information in his service record.  Accordingly, the ADRB granted relief in the form of an upgrade of characterization of service to a general discharge under honorable conditions.  The ADRB found the reason for discharge to be proper and equitable and did not change it.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a, for wrongful use of cocaine is a punitive discharge and confinement for 
5 years.

11.  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.

12.  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’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The ADRB determined that the applicant’s discharge under other than honorable conditions was too harsh and granted relief by upgrading it to under honorable conditions.  There is no new evidence of record and the applicant has not provided any evidence or mitigating argument to show that further upgrade of his discharge to honorable is warranted.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 31 May 1997.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_CVM___  _DED___  __ERM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




__     Conrad V. Meyer_____
          CHAIRPERSON




INDEX

CASE ID
AR20070003671
SUFFIX

RECON
 
DATE BOARDED
20070821
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 GD
DISCHARGE AUTHORITY
AR 635-200 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.