RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 January 2006 DOCKET NUMBER: AR20050001113 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. Rosa M. Chandler Analyst The following members, a quorum, were present: Mr. William D. Powers Chairperson Mr. Thomas M. Ray Member Mr. Randolph J. Fleming Member 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 or to a fully honorable discharge. 2. The applicant states that he desires to personally appear before the Board. 3. The applicant provides no evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 5 March 1982. The application submitted in this case is dated 6 January 2005. 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 limitations 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. On 22 January 1981, the applicant enlisted in the United States (US) Army Reserve Delayed Entry Program (DEP) for 6 years. On 18 February 1981, he was discharged from the DEP and enlisted in the Regular Army for 3 years. He completed the training requirements and he was awarded military occupational specialty (MOS) 13B (Cannon Crewman). 4. On 24 December 1981, the applicant was convicted by a summary court-martial (SCM) for striking a sergeant in the face with his fist on 2 December 1981. He was sentenced to reduction from pay grade E-2 to pay grade E-1, a forfeiture of $150.00 pay for 1 month, and to be confined at hard labor for 25 days. 5. On 5 February 1982, the applicant was convicted by a SCM for participating in a breach of peace by wrongfully engaging in an affray with a private on 17 January 1982, and of being disorderly and disrespectful in language and deportment towards a sergeant on 18 and 20 January 1982. He was sentenced to a forfeiture of $100.00 pay for 1 month and to be confined at hard labor for 20 days. 6. On 28 January 1982, the applicant underwent a mental status evaluation which determined he was qualified for separation. On the same date, he declined a medical examination. 7. The applicant's records do not contain all of the facts and circumstances surrounding the discharge process. However, his records do contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was prepared at the time of separation. The DD Form 214 shows that, on 5 March 1982, he was separated with an UOTHC discharge for frequent involvement in incidents of a discreditable nature with civil or military authorities, under the provisions of chapter 14, Army Regulation (AR) 635-200. He had completed a total of 11 months and 12 days of active military service and he had 34 days of recorded lost time. 8. AR 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 and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. An UOTHC discharge is normally considered appropriate. 9. On 11 August 1983, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge. 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 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 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 available records show the applicant was discharged under the provisions of chapter 14, AR 635-200, for frequent involvement in incidents of a discreditable nature with civil or military authorities. Some of the facts and circumstances surrounding the discharge process are missing. However, his record shows the commission of several offenses which were punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The applicant would have been required to consult with defense counsel and he would have been required to sign a statement indicating that he had been informed that he could receive an UOTHC and the ramifications of receiving such a discharge. The Board presumes regularity in the discharge process. The applicant has provided no information that would indicate the contrary. 2. The applicant’s conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service was not so meritorious as to warrant an upgrade of his discharge 3. The applicant does not have a right to a hearing before the ABCMR. The Director or the Board may grant a formal hearing whenever justice requires or when issues presented are unique, convoluted, or precedent setting. 4. Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 11 August 1983. As a result, the time for the applicant to file a request for correction or any error or injustice to this Board expired on 10 August 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __wdp___ __tmr___ __rjf___ 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. William D. Powers ______________________ CHAIRPERSON INDEX CASE ID AR20050001113 SUFFIX RECON DATE BOARDED 20060105 TYPE OF DISCHARGE (UOTHC) DATE OF DISCHARGE 19820305 DISCHARGE AUTHORITY AR635-200, Chap 14 DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 144.6000 2. 3. 4. 5. 6.