RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           26 FEBRUARY 2004                   
	DOCKET NUMBER:   AR2003093308

	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.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Mae M. Bullock		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 other than honorable conditions be upgraded to honorable or general.

2.  The applicant states that he injured his knee while stationed at White Sands, New Mexico, sustaining a torn ACL (anterior cruciate ligament).  The recovery period would take over a year and the doctor that performed the surgery would not repair the damage done.  He became depressed, started drinking heavily and using drugs to combat his pain.  He got into trouble and court-martial proceedings were initiated on him.  On the advice of counsel, he requested that he be discharged.  He was young and scared and did not want to spend time in prison, so he opted to get out of the Army.  Now he knows that his decision was incorrect.  He has quit drinking and taking drugs, has celebrated his eleventh year of sobriety, and is married. 

3.  The applicant provided no evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 9 August 1982.  The application submitted in this case is dated 12 May 2003.  
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 limitation 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 enlisted in the Army on 14 March 1978, completed basic, advanced, and airborne training, and in September 1978 was assigned to Fort Lewis, Washington.    

4.  On 10 October 1979 he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order and for disrespect to a noncommissioned officer.

5.  In December 1979 the applicant was assigned to an infantry company in Hawaii.  On 13 June 1980 he was promoted to pay grade E-4.

6.  On 16 October 1980 the applicant received nonjudicial punishment for willfully disobeying a lawful order on two occasions.

7.  On 19 December 1980 the applicant reenlisted in the Army for 4 years.  On   23 February 1981 the applicant was awarded the Good Conduct Medal for the period 14 March 1978 to 13 March 1981.  

8.  On 2 March 1981 he received nonjudicial punishment for wrongful possession of marijuana.

9.  In May 1981 the applicant was assigned to an infantry company at Fort Benning, Georgia.  On 28 July 1981 he received nonjudicial punishment for failure to go to his place of duty on three separate occasions.

10.  The applicant was confined by civil authorities in the Columbus, Georgia jail for disorderly conduct, trespassing, and disturbing the peace, from 1 September 1981 until his return to duty on 4 September 1981.     

11.  A medical report shows that the applicant was admitted to the hospital on     8 September 1981 because his leg gave out on him.  The report shows that he had hurt his knee on 24 August 1981.  His condition was diagnosed as a ligament tear to his knee.  There are no other medical records available to the Board.  

12.  On 20 October 1981 he received nonjudicial punishment for failure to go to his place of duty, and for preparing and presenting a false claim against the government.

13.  The applicant was confined by civil authorities in the Muscogee County jail for not paying a fine, from 29 October 1981 until his return to duty on                   9 December 1981. 

14.  On 18 December 1981 he was barred from reenlisting.  

15.  The applicant received nonjudicial punishment on 7 January 1982 for unlawfully striking a fellow Soldier.  He received nonjudicial punishment on        26 February 1982 for failure to go to his place of duty.

16.  The applicant was AWOL (absent without leave) on 16 May 1982, returning to duty the next day, at which time he was placed in confinement.

17.  Special Court-Martial Order Number 138, published by Headquarters, U.S. Army Infantry Center and Fort Benning on 9 September 1982, shows that the applicant was arraigned and charged with eight specifications of misconduct, e.g., AWOL, failure to go to place of duty, absent from place of duty, damage to military property, and breaking restriction.  That order shows that the proceedings were terminated as a result of the withdrawal of the charges by the convening authority on 30 July 1982, the applicant having been subsequently discharged under the provisions of Army Regulation 635-200, chapter 10.  The charges and specifications were dismissed. 

18.  The applicant was discharged on 9 August 1982 under the provisions of the above-mentioned regulation.  His discharge was under other than honorable conditions.  The proceedings relative to his discharge are not available to the Board.  

19.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The 9 September 1982 special court-martial order shows that he was discharged under the provisions of the above-mentioned regulation.  The applicant does not dispute the fact that he requested discharge.  He chose to request an administrative discharge rather than risk the consequences of a court-martial.  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.  Considering his numerous acts of misconduct, the character of the discharge was warranted.

2.  The applicant's contention that he was young, immature, and scared at the time is not sufficiently mitigating to warrant relief.  He completed training, served in the Army for over four years at four different locations, and attained the grade of E-4.  Noted is the fact that the applicant did injure his knee; however, his injury and any subsequent treatment or rehabilitation do not justify his numerous wrongdoings.  His acts of misconduct occurred both before and after his injury.  The applicant's profession of good post service conduct is also noted, but does not warrant the relief that he requests.    

3.  The actions of the Army in this case were proper.  His request to upgrade his discharge is not warranted.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 August 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on           8 August 1985.  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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AAO __  __JTM __  __MMB _  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.

		___Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2003093308	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040226	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.