RECORD OF PROCEEDINGS

	IN THE CASE OF:    

	BOARD DATE:           2 March 2004                  
	DOCKET NUMBER:   AR2003091015

	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. Jeanie M. Biggs		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Robert L Duecaster		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, in effect, that his under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his youth, immaturity, racial discrimination, and financial and personnel problems impaired his ability to serve while in the Army.  He further states that he was a good service member, completing all of his training and receiving several awards.  He charges that his recruiter lied to him by telling him his wife could go with him to his first duty station.  His wife later discovered a lump on her breast, which required an operation.  The Army would not let him go home to his wife during that ordeal, and it resulted in a financial hardship for his family.  He concludes by stating that he has been a good and productive citizen since his discharge.

3.  The applicant provides three letters attesting to his excellent post service conduct.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 10 October 1975.  The application submitted in this case is dated 28 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.  On 2 April 1974, the applicant enlisted in the Regular Army for 
2 years.  At that time, the applicant stated that he was not married.  He underwent basic combat and advanced individual training in Military Occupational Specialty 16P10 (Chaparral Crewman).  He was assigned to Germany and advanced to pay grade E-2. 

4.  On 28 August 1975, mental status evaluation and a separation medical examination found the applicant qualified for separation.  He was considered mentally and physically competent to participate in board proceedings.

5.  The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, the Army Discharge Review Board (ADRB) Case Report and Directive indicates that on 3 September 1975, the applicant was charged with AWOL from 29 December 1974 to 20 August 1975.  He consulted with counsel and requested discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200, Chapter 10.  He submitted a statement in his own behalf.  Also, the chain of command recommended that the request for discharge be approved and that he be furnished an undesirable discharge.  Accordingly, the applicant was discharged under other than honorable conditions in absentia on 10 October 1975 under the provisions of Army Regulation 635-200 Chapter 10, for the good of the service in lieu of court-martial.  He had served exactly 10 months and 17 days of total active service.  He had 234 days of time lost and 47 days of excess leave.

6.  On 30 October 1980, the ADRB denied the applicant’s request for a discharge upgrade to honorable or general. 

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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation, an Undesirable Discharge Certificate was issued.

8.  Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  Court-martial charges were properly preferred against the applicant.

2.  The applicant voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulation. 

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 of unjust.  The applicant has failed to submit evidence that shows that his youth and immaturity, racial discrimination, financial and personnel problems impaired his ability to service while in the Army.  In addition, the applicant’s statement that his recruiter lied about taking his wife to his first duty station is not supported by the evidence of record.  The applicant wasn’t married when he enlisted.

4.  The applicant was not awarded any awards or decorations which would mitigate his characterization of service.

5.  The fact that the applicant has been a productive citizen since his discharge is commendable.  However, his post-service conduct is not sufficiently mitigating to warrant upgrading a properly issued discharge

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 October 1980, the date the ADRB disapproved the applicant’s request for an upgrade of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 October 1983.  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:

__fne____  ____aao  ____rld __  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.

		__________Fred N. Eichorn____________
		        CHAIRPERSON

INDEX

CASE ID	AR2003091015	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040302	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	19751010	
DISCHARGE AUTHORITY	AR . . . . . 635-200, CH 10 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.