RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 March 2004 
	DOCKET NUMBER:   AR2003091232

	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. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		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 be upgraded.

2.  The applicant makes no statement.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 September 1999.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 10 September 1999.  The application submitted in this case is dated 23 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 record contains documentation from prior periods of service; however, it does not contain the specific facts and circumstances pertaining to his latest period of service ending 10 September 1999.  Nevertheless, his record does contain a properly constituted DD Form 214.

4.  The applicant's DD Form 214 shows he enlisted in the Regular Army on 7 January 1997.  He was trained in military occupational specialty (MOS) 92G (Food Service Specialist).

5.  The applicant's DD Form 214 shows he had 186 days of lost time due to absence without leave (AWOL) from 9 September 1998 to 23 March 1999.

6.  The applicant's DD Form 214 shows he was discharged on 10 September 1999 under the provisions of chapter 10, Army Regulation 635-200 by reason of discharge for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.

7.  The applicant's DD Form 214 credits him with 2 years, 1 month, and 18 days of active military service.

8.  On 18 April 2003, the Army Discharge Review Board upgraded the applicant's discharge from under other than honorable conditions to general, under honorable conditions.

9.  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.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the decision of the Army Discharge Review Board; therefore, the applicant has timely filed.

2.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to a discharge from the Army.  The Board noted that the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed Government regularity in the discharge process.  

3.  The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ.  In the absence of information to the contrary, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.

5.  The applicant's act of misconduct (186 days of AWOL) diminished the quality of his service below that meriting a fully honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__sac___  __slp___  __bje___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.

			Samuel A. Crumpler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003091232	
SUFFIX		
RECON		
DATE BOARDED	20030309	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19990910	
DISCHARGE AUTHORITY	AR 635-200, Chap 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.