RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  13 January 2004
	DOCKET NUMBER:  AR2003088720

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Patrick H. McGann		Member	
	Mr. Roger W. Able		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 (UOTHC) be upgraded to honorable.

2.  The applicant states that he was young and stupid when he was discharged for slashing the tires of several vehicles of fellow soldiers after they made vile comments about a female officer he admired.  He was caught and apologized with appropriate compensation for the damage.  His discharge has resulted in denied jobs and benefits and he is now suffering from clinical depression.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice, which occurred on 20 February 1986.  The application submitted in this case is dated 1 April 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's records show that he enlisted and entered active duty on 11 August 1983.  He was trained as a cook and assigned to Fort Benning, Georgia.  He was promoted to pay grade E-3 effective 11 August 1984.

4.  The applicant was absent without leave (AWOL) from 17 October to 12 November 1985.  On 6 December 1985 charges were preferred for the AWOL offense and for cutting with a knife automobile tires of ten fellow soldiers.

5.  After consulting with counsel the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request he acknowledged guilt to the offenses that might result in a punitive discharge.  He also acknowledged that he understood the result of a UOTHC discharge that he might receive and that he might be deprived of many veterans' benefits.

6.  On 13 February 1986 a Report of Mental Status Evaluation was prepared which noted that the applicant's behavior was passive, he was fully alert and oriented, and his mood was unremarkable.  Additionally, his thought process was clear, his thought content was normal, and his memory was good.  The resulting impression of the mental status evaluation was that the applicant was within normal limits.

7.  The separation authority approved the request for separation and directed issuance of a discharge under other than honorable conditions with reduction to the lowest enlisted grade.  Effective 20 February 1986, the applicant was discharged in the pay grade of E-1 under the authority of Army Regulation 635-200, chapter 10.  He had 2 years, 5 months, and 13 days creditable service and 27 days lost time due to AWOL.

8.  On 3 November 1999, the ADRB determined that the applicant's separation was proper and equitable and voted unanimously to deny his request for an upgrade of his UOTHC discharge.

9.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  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 the offenses he was charged with.

2.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Current standards do not change the separations authority's ability to issue a discharge under other than honorable conditions for periods of AWOL and destruction of private property.

3.  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 this requirement.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 3 November 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 November 2002. 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

__lm___  ___pm___  ___ra__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		___Lana E. McGlynn__
		        CHAIRPERSON

INDEX

CASE ID	AR2003088720	
SUFFIX		
RECON		
DATE BOARDED	20040113	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19860220	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.