RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            December 2, 2003                  
	DOCKET NUMBER:    AR2003091229

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Patrick H. McGann		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 a general discharge.

2.  The applicant states that his life has turned around, that he is a stand-up, accountable citizen who takes responsibility and good conduct as job number one.  He also states that at the time he was a troubled teen whose family was going through divorce and needed his help.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 13 August 1980.  The application submitted in this case is dated 1 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.  He enlisted on 13 July 1979 for a period of 3 years, training as an administrative specialist and assignment to Korea.  He was transferred to Fort Jackson, South Carolina to undergo his training.

4.  On 23 October 1979, while attending his advanced individual training (AIT), nonjudicial punishment (NJP) was imposed against him for the wrongful use of marijuana.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

5.  He completed his AIT and was transferred to Korea on 21 November 1979, where he was assigned to a Postal Detachment at Camp Humphreys in Pyongtaek, South Korea.

6.  On 31 January 1980, the applicant received a Letter of Reprimand for being disrespectful towards a superior noncommissioned officer. 

7.  On 3 March 1980, NJP was imposed against him for assaulting a military policeman.  His punishment consisted of extra duty.

8.  On 19 March 1980, NJP was imposed against him for two specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1 and restriction.

9.  On 20 June 1980, charges were preferred against the applicant for four specifications of failure to go to his place of duty, two specifications of being absent without leave (AWOL) for 1 day, one specifications of dereliction of duty, one specification of breaking restriction, one specification of the wrongful use of a Liberty Pass, and one specification of wrongful use of Domestic Mail with intent to deceive.

10.  On 23 June 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf. 

11.  The appropriate authority approved his request and directed that he be discharged under other than honorable conditions.

12.  Accordingly, he was discharged under other than honorable conditions on 13 August 1980, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year and 29 days of active service and had 2 days of lost time due to AWOL.

13.  There is no evidence in the available records to show 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 the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 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 regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering his undistinguished record of service during such a short period of time.

4.  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.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 13 August 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 August 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:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_PM___  __FE___  __MM___      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.  

		Fred N. Eichorn
	                                             CHAIRPERSON

INDEX

CASE ID	AR2003091229	
SUFFIX		
RECON		
DATE BOARDED	2003/12/02	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	1980/08/13	
DISCHARGE AUTHORITY	AR635-200/CH10 . . . . .  	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.144.7000	689/A70.00	
2.		
3.		
4.		
5.		
6.