RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           08 APRIL 2004                   
	DOCKET NUMBER:   AR2003095254

	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. Raymond J. Wagner		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. William D. Powers		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.

2.  The applicant states that he requested discharge.  It was his option. 

3.  The applicant provided no evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 9 September 1987.  The application submitted in this case is dated 4 July 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.  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. 

3.  The applicant enlisted in the Army for three years on 29 January 1985, completed basic training, and in April 1985 was assigned to Fort Lee, Virginia for advanced training.  He was AWOL (absent without leave) from 29 April 1985 until his return to military control in Puerto Rico on 28 May 1985.  He completed his training, however, and in August 1985 was assigned to Fort Ord, California.  He was AWOL from 13 November 1985 until his apprehension at Fort Buchanan, Puerto Rico on 23 July 1987.  

4.  On 29 July 1987 court-martial charges were preferred against the applicant.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He stated that he was making the request of his own free will and had not been subjected to any coercion whatsoever.  He stated that he acknowledged that he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.  He stated that he understood the nature and consequences of the under other than honorable discharge that he might receive.  He declined to make a statement in his own behalf.  

5.  On 25 August 1987 the separation authority approved the applicant's request and directed that he be furnished a discharge certificate under other than honorable conditions.  He was discharged on 9 September 1987. 

6.  On 9 September 1997 the applicant requested to the Army Discharge Review Board that his discharge be upgraded to honorable.  He, along with counsel, appeared before that board on 17 April 1998.  The Army Discharge Review Board, in an unanimous opinion, denied the applicant's request to upgrade his discharge.  

7.  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 applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.
  
2.  The applicant has submitted no evidence or any argument in support of his request.   

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 April 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         16 April 2001.  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 RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RJW __  ___GJW_  __WDP _  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.

		__Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2003095254	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040408	
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.