RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 3, 2004                  
	DOCKET NUMBER:   AR2003090682

	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	
	Ms. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Curtis L. Greenway		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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he had a disagreement with his platoon sergeant’s homosexual advances and he was accused of trashing his room and destroying his personal property.  He states that he took an early discharge to get out of the “brig” and go home.

3.  The applicant provides a letter from his employer dated 12 February 2003; a letter from his wife dated 19 April 2003; and a letter from the night manager of the Buckley Detox Center all attesting to his good character and post-service conduct.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 23 July 1976.  The application submitted in this case is dated 22 January 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.  On 28 December 1973, he enlisted in the Army in Fresno, California, for 3 years in the pay grade of E-1.  He successfully completed his training as a field artillery crewman.  On 22 April 1974, he was transferred to Fort Lewis, Washington.  He was promoted to the pay grade of E-2 on 28 April 1974.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 16 September 1974, for possession of marijuana.  His punishment consisted of a forfeiture of pay and extra duty.

5.  On 24 October 1974, NJP was imposed against him for being absent without leave (AWOL) on 10 October 1974 and for being disrespectful in language toward his senior noncommissioned officer.  His punishment consisted of a forfeiture of pay and extra duty.

6.  The applicant was promoted to the pay grade of E-3 on 9 December 1974.

7.  On 6 March 1975, NJP was imposed against him for being AWOL from 27 January until 30 January 1975.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

8.  The records show that the applicant wrote two dishonored checks on 16 April and 23 May 1975, which resulted in his check cashing privileges being suspended. He also failed to make payment to the Post Exchange television rental facility on 27 June 1975.

9.  On 30 June 1975, NJP was imposed against the applicant for two separate incidents of failure to obey a lawful order.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

10.  He had NJP imposed against him again on 2 January 1976, for possession of marijuana.  His punishment consisted of a forfeiture of pay and extra duty.

11.  The applicant had NJP imposed against him a sixth time on 1 March 1976, for failure to go to his appointed place of duty and for wrongfully altering a medical slip.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

12.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Separation, DD Form 214, indicates that the applicant was discharged on 23 July 1976, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 2 years, 10 months and 19 days of total active service and he was furnished an Undesirable Discharge Certificate.

13.  There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  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.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for a chapter 10 discharge, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

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

3.  The applicant’s contentions have been noted.  However, they are unsubstantiated by the evidence of record.  The evidence of record shows that he had NJP imposed against him for six separate occasions for his acts of misconduct.  He also had his check cashing privileges suspended for writing checks that were dishonored and considering his numerous acts of misconduct, it does not appear that his undesirable discharge was too severe.  

4.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.  The character of the discharge is commensurate with his overall record of service.

5.  Consideration has been given to the supporting statements submitted by the applicant; however, they are not sufficiently mitigating when compared to his overall undistinguished record of service.

6.  In order to justify correction of a military record the applicant must show 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.

7.  Records show the applicant should have discovered the error or injustice now under consideration on 23 July 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 July 1979.  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

rks_____  sac_____  clg_____  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.  

		___Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090682	
SUFFIX		
RECON		
DATE BOARDED	20040203	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760723	
DISCHARGE AUTHORITY	AR 635-200/CHAPTER 10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100.0000/REQUES FOR DISCHARGE	
2.  713	144.7110.000/AWOL	
3.  717	144.7400.0000/DRUGS	
4.		
5.		
6.