RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 NOVEMBER 2003                  
	DOCKET NUMBER:   AR2003090855

	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. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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 conditions other than honorable be upgraded to honorable.

2.  The applicant states that his refusal to obey orders was because his wife was cheating on him with three of his co-workers.  He was not able to transfer; however, a counselor recommended that he be transferred from Fort Riley.  His company commander discarded the recommendation and refused his right to take advantage of the colonel's open door policy.  He had no other options.  He always did his job to the best of his ability.  Two of his wife's new boy friends were his best friends.  He is sorry for his mental breakdown during his divorce proceedings.

3.  The applicant provided no evidence to support his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on          6 November 1985.  The application submitted in this case is dated 28 March 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 for four years on 24 May 1984, completed training, and in September 1984 was assigned to Fort Riley, Kansas as a cannon crewman.  He was advanced to the rank of private first class on 1 March 1985.

4.  A 25 July 1985 counseling statement indicates that the applicant disobeyed an order to get up (get out of bed).

5.  On 12 August 1985 a noncommissioned officer (NCO), in a counseling statement, indicated that he ordered the applicant to get his bags packed to go to the field, and the applicant refused.  The NCO stated that he refused a like order from the battery commander.

6.  On 16 August 1985 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana, and for disobeying a lawful order.   

7.  The applicant was AWOL (absent without leave) from 19 August 1985 until his return to military control on 19 September 1985.  On 19 September 1985 he was arraigned, tried, and convicted for being AWOL and sentenced to 14 days confinement.  On 20 September 1985 the convening authority approved the sentence and ordered that it be executed.  

8.  A 1 October 1985 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination, the applicant stated that he had no real health problems lately and was not using any medications.

9.  A 1 October 1985 report of mental status evaluation shows that the applicant was mentally responsible, had the mental capacity to understand and participate in board proceedings, and met the standards for retention in the Army.

10.  On 16 October 1985 the applicant's commanding officer notified the applicant that he was recommending that he be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c.  The applicant consulted with counsel, and stated that he had been advised of the basis for the contemplate action to separate him for misconduct, its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He waived consideration of his case by an administrative separation board, and declined to submit statements in his own behalf.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  

11.  The applicant's battery commander recommended that the applicant be separated for misconduct, stating that the applicant had reacted negatively to past efforts such as counseling and punishment and was resisting any efforts in that direction.  The applicant's battalion commander recommended approval, stating that the applicant was a substandard Soldier, who could not be relied upon.  He stated that his behavior detracted leaders from taking care of good Soldiers and disrupted valuable training time.  

12.  On 31 October 1985 the separation authority approved the recommendation and directed that the applicant be issued an Under Other Than Honorable Discharge Certificate.  The applicant was discharged on 6 November 1985.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.  An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense.
An under other than honorable conditions certificate is normally appropriate for a member discharged for misconduct.

14.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
  
DISCUSSION AND CONCLUSIONS:

1.  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.  The applicant's contention that his personal problems caused his misconduct, and his implication that he was unfairly treated is not borne out by any evidence submitted.        
  
2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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 that requirement.
  
4.  Records show the applicant should have discovered the error or injustice now under consideration on 6 November 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 November 1988. 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

__JNS __  __MDM__  __BJE __  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.  

		____ John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090855	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031118	
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.