RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 NOVEMBER 2003                  
	DOCKET NUMBER:   AR2003090776

	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. Ronald E. Blakely		Member	
	Ms. Eloise C. Prendergast		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, in effect, that he made some bad decisions and is sorry. He has a good life since, raising a family and no problems.  He does not want to live the rest of his life with the type discharge he has.  After all this time the discharge should be upgraded.  He has changed his life and served his community well.

3.  The applicant provides a copy of his 17 January 1985 DD Form 214 (Certificate of Release or Discharge from Active Duty), and copies of three letters of support, to include letters from a minister and an active Army military policeman, all of whom vouch for his good character.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on        17 January 1985, and again on 28 May 1986 when the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge.  The application submitted in this case is dated 6 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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the Board 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 on 1 February 1980, completed training, and was assigned to Fort Stewart, Georgia as a track vehicle mechanic.  He was promoted to pay grade E-4, and in November 1981 was assigned to an infantry battalion in Germany.

4.  On 12 August 1982 he reenlisted for three years for assignment to Fort Stewart.  He was assigned to an infantry battalion at Fort Stewart in January 1983.  In August of that year he was promoted to sergeant.    

5.  On 29 December 1983 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully and unlawfully endeavoring to impede an investigation by providing false information, which he knew to be false.  He was reduced to pay grade E-4.

6.  On 20 July 1984 the applicant's commanding officer recommended that the applicant be barred from reenlistment.  In so doing, he indicated that the applicant was cited for driving under the influence and leaving the scene of an accident on 18 July 1984.  The recommendation was approved.  

7.  On 5 November 1984 charges were preferred against the applicant for wrongfully distributing marijuana on or about 29 August 1984.  The applicant's battalion commander recommended that he be tried by general court-martial.

8.  On 28 December 1984 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 because of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that he was making the request of his own free will and that he had not been subject to any coercion whatsoever.  He stated that he acknowledged that he was guilty of the charge against him, and that he had no desire for further rehabilitation or to perform further military service.  He stated that he understood the nature and consequences of the discharge under other than honorable conditions that he might receive.  He declined to submit a statement in his own behalf. 

9.  On 7 January 1985 the separation authority approved his request and directed that he be furnished a discharge certificate Under Other Than Honorable Conditions.  He was discharged on 17 January 1985.  

10.  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 voluntary request for separation for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  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.
  
2.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

3.  While the Board has taken cognizance of the applicant's professions of regret for his past misconduct, and his good post-service conduct as evidenced by the letters of support included with his request, none of these factors, either individually or in sum, warrant the relief requested.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 28 May 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 May 1989.  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 __  __REB__  ___ECP _  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.  

		____Arthur A. Omartian______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090776	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031113	
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.