RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 September 2005 DOCKET NUMBER: AR20050000911 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. Rene’ R. Parker Analyst The following members, a quorum, were present: Mr. John N. Slone Chairperson Mr. Eric N. Anderson Member Ms. Carol A. Kornhoff 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 that his under other than honorable conditions discharge be upgraded. 2. The applicant states that there was no error made in his discharge, however, after three years his discharge is eligible to be reviewed for possible upgrade. 3. The applicant provides a statement requesting to appear before the Board in Los Angeles, if possible. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting upgrade of his discharge dated 25 November 1985. The application submitted in this case is dated 4 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. The applicant’s record shows he enlisted in the Regular Army and entered active duty on 7 February 1984. He was trained in, awarded, and served in military occupational specialty (MOS) 11B10 (Infantryman). 4. On 10 October 1985, the applicant signed a statement declining a separation medical examination. 5. On 16 October 1985, the applicant signed an admission of AWOL statement for administrative purposes. The applicant admitted that he was advised by defense counsel and he knowingly, willingly and voluntarily declared that he was absent without leave from the US Army from 6 January 1985 to 7 October 1985. 6. On 17 October 1985, the applicant consulted with his counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10 of Army Regulation 635-200. 7. The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Under Other Than Honorable Conditions Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge. The applicant further understood that there is no automatic upgrading or automatic review of his discharge by any government agency or the Army Board for the Correction of Military Records. The applicant elected not to provide a statement on his behalf. 8. On 28 October 1985, the captain in command of the Special Processing Company, Fort Knox, Kentucky, forwarded the recommendation for the applicant's separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. The commander stated that the applicant’s conduct could lead to a bad conduct or dishonorable discharge if tried by court-martial. He recommended a discharge under other than honorable conditions. 9. The lieutenant colonel in command of Headquarters, USA Personnel Control Facility, 2d Armor Training Brigade, also recommended approval of the discharge action. He recommended that the applicant be issued a discharge under other than honorable conditions. 10. On 31 October 1985, the acting commander of the Armor Center/School Brigade, at Fort Knox, approved the applicant’s discharge under the provisions of Chapter 10 of Army Regulation 635-200 with an under other than honorable conditions discharge. 11. The applicant's DD Form 214 shows that he was discharged under other than honorable conditions on 25 November 1985. The applicant had 1 year and 18 days of creditable service and 274 days lost due to AWOL. 12. On 10 Oct 1993, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge. On 21 August 1996, the ADRB denied the applicant’s request for a discharge upgrade. The ADRB unanimously determined that the discharge was both proper and equitable. 13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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. 14. Army Regulation 635-200 paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 15. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 16. Army Regulation 15-185 governs operations of the Army Board for Correction of Military Records (ABCMR). Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the Board may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires. 17. 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 admits that there were no errors in the issuance of his discharge certificate. However, he contends that the discharge is eligible for review after three years for possible upgrade. 2. Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. The record further shows the applicant’s discharge accurately reflects his overall record of service. 3. The ABCMR only conducts hearings in Arlington, Virginia. Therefore, the applicant cannot appear before the Board in Los Angeles, California. Only the Director of the ABCMR or the Board will determine if justice requires the applicant to appear before the Board. 4. There are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed. The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade. Therefore, the contention of the applicant that his discharge merits a possible upgrade after three years is not sufficient as a basis to upgrade his under other than honorable conditions discharge. 5. The applicant’s record of service shows 274 days of lost time due to AWOL. 6. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to either a general or an honorable discharge. 7. Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the Army Discharge Review Board on 21 August 1996. As a result, the time for the applicant to file a request for correction of any error or injustice expired on 20 August 1999. 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 _CAK__ __ENA__ __JNS____ 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. ___John N. Slone___ CHAIRPERSON INDEX CASE ID AR20050000911 SUFFIX RECON DATE BOARDED 20050915 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.