RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            05 February 2004                  
	DOCKET NUMBER:   AR2003091336

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		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 to honorable.

2.  The applicant states he was “young and stupid” and that he is a good person and helps people all the time. 

3.  The applicant provides no evidence in support of his request but does indicate that he was providing evidence of service in the Army National Guard from which he was honorably discharged for medical reasons.  There was, however, no such information attached to request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
12 August 1980.  The application submitted in this case is dated 14 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.  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.  Records available to the Board indicate that the applicant initially entered active duty in February 1977.  He was nearly 18 years old at the time, had completed 9 years of formal education, and had a GT (general technical) score of 84.

4.  The applicant successfully completed basic combat and advanced individual training prior to being assigned to Germany in June 1977 as a personnel carrier driver.  By October 1978 he had attained the grade of E-4.  On 14 November 1978 he was discharged for the purpose of immediate reenlistment.

5.  On 30 November 1978 he was punished under Article 15 of the Uniform Code of Military Justice for leaving his guard post without being properly relieved.  In January 1979 he was punished for being disrespectful toward a noncommissioned officer and in August 1979 for failure to repair.  As a result of his nonjudicial punishments, by August 1979 he had been reduced to pay grade E-2.
6.  In January 1980 the applicant was reduced to pay grade E-1 after being punished under Article 15 of the Uniform Code of Military Justice for assault, disobeying a lawful order, and having an unclean uniform.

7.  An 8 February 1980 mental status evaluation found the applicant fully alert and oriented, his thought process clear and normal, and that he was able to distinguish right from wrong and to adhere to the right.

8.  His records indicate that on 10 March 1980 he was convicted by a summary court-martial of four counts of failure to repair and breaking restriction.  Although the actual court-martial documents were not in the applicant’s file, his record does indicated that he was confined from 10 March 1980 until 2 April 1980.  He was initially confined in Mannheim, Germany, but subsequently transferred to the Retraining Brigade at Fort Riley, Kansas.

9.  On 9 April 1980, after being released from confinement and assigned as a “trainee” at the Retraining Brigade, the applicant was punished under Article 15 of the Uniform Code of Military Justice for disobeying a lawful order.

10.  On 12 April 1980 he departed AWOL (absent without leave).  He surrendered to military authorities on 25 June 1980 and was convicted by a summary court-martial on 17 July 1980.

11.  Mental status evaluations conducted on 24 and 25 July 1980 both found the applicant fully alert and oriented, his thought process clear and normal, and that he was able to distinguish right from wrong and to adhere to the right. 

12.  On 30 July 1980 the applicant’s commander initiated actions to administratively separate him from active duty under the provisions of Army Regulation 635-200, Chapter 14, for frequent incidents of a discreditable nature with civil or military authorities.  The commander cited the applicant’s two court-martial actions and numerous nonjudicial punishments as the basis for his action. He also noted that the applicant demonstrated little desire for returning to duty and had received counseling by members of the leadership.

13.  The applicant acknowledged receipt of the proposed separation, consulted with counsel, and waived his attendant rights.

14.  The recommendation was approved and on 12 August 1980 the applicant was discharged under other than honorable conditions.  He was 21 years old at the time and had completed just over 3 years of active Federal service with more than 120 days of lost time due to AWOL and confinement.

15.  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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities, desertion or absence without leave.  Generally a discharge under other than honorable conditions is appropriate for a soldier discharged under this chapter.  

16.  In 1986 the Army Discharge Review Board denied the applicant’s petition to upgrade the character of his discharge.

17.  There is no evidence that the applicant served in the Army National Guard following his discharge from the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  His successful completion of training and promotion to pay grade E-4, clearly indicates that the applicant was capable of honorable service, in spite of being only 17 years old at the time of his enlistment.

2.  The fact that the applicant has now come to realize the consequence of his less than honorable discharge, and his contention that he has been a good citizen, have been noted.  However, neither factor outweighs the seriousness of his conduct while in the military and does not, in this case, provide an adequate basis upon which to grant relief as a matter of equity.

3.  The applicant’s discharge was accomplished in accordance with applicable laws and regulations.  In order to justify correction of a military record the applicant must show, 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.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration in 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired in 1989.  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

__FNE __  __JPI ___  __KAH__  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	AR2003091336	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040205	
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.