RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 January 2004                  
	DOCKET NUMBER:    AR003091124

	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. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. William D. Powers		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 (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant states, in effect, that he received no more than three Article 15s.  He also claims that someone broke into his room and stabbed him in the back.  

3.  The applicant provides no documents or evidence in support of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error or injustice which occurred on 11 September 1981, the date he was discharged from the Army.  The application submitted in this case is dated 13 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.  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’s military records show that he enlisted in the Regular Army and entered active duty for three years on 30 January 1980.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantry) and the highest rank he attained while serving on active duty was private/E-2.  

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four dates for the offense(s) indicated:  
3 July 1980, for failure to go to his prescribed place of duty; 24 July 1981, for disobeying a lawful order; 9 August 1981, for disobeying a lawful order; and 
4 September 1981, for disobeying a lawful order.  

5.  On 19 May 1981, the applicant was found guilty by a special court-martial of three specifications of violation of Article 86 of the UCMJ, for being absent without leave (AWOL) from on or about 21 March 1981 through on or about
25 March 1981, on or about 26 March 1981, and on or about 28 March 
1981 through on or about 23 April 1981.  The resultant sentence included a reduction to the grade of private/E-1 and confinement at hard labor for two months.  

6.  The separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing are not on file.  However, there was a summary of facts and circumstances from an Army Discharge Review Board (ADRB) case summary on file in the record.  

7.  The ADRB summary shows that the applicant was notified of pending discharge proceedings on 5 August 1981.  On 25 August 1981, his unit commander recommended his discharge under the provisions of chapter 14, Army Regulation 635-200, due to frequent incidents of a discreditable nature.  On 27 August 1981, the applicant consulted with legal counsel and waived his right to have his case considered by an administrative separation board and declined to submit a statement in his own behalf.  On 8 September 1981, the separation authority approved the separation action and directed that the applicant be discharged UOTHC, and on 11 September 1981, the applicant was discharged accordingly.  

8.  The separation document (DD Form 214) issued to the applicant on the date of his discharge, 11 September 1981, confirms that he received an UOTHC discharge after completing 1 year, 4 months, and 22 days of creditable active military service and having accrued a total of 80 days of time lost due to AWOL and confinement.  The DD Form 214 indicates that the applicant received no individual awards or decorations during his tenure on active duty.  

9.  On 17 March 1983, the ADRB voted to deny the applicant’s request for an upgrade of his discharge after determining that it was proper and equitable.  

10.  Army Regulation (AR) 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter 14 contains the policy guidance for separation by reason of misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

11.  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.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was too harsh based on his disciplinary history was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of undistinguished service.

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 that the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 17 March 1983.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 16 March 1986.  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

_AR___  __WDP__  __MKP____  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.  

		Margaret K. Patterson
		    CHAIRPERSON

INDEX

CASE ID	AR2003091124	
SUFFIX		
RECON		
DATE BOARDED	2004/01/DD	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981/09/11	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360	144.0000	
2.		
3.		
4.		
5.		
6.