RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012434 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller 

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Susan Powers

Member

Mr. Qawiy Sabree

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 discharge under other than honorable conditions be upgraded to general or honorable.

2.  The applicant states that he has reorganized his life and has not had any problems with alcohol since his time in the service.  He contends that he has held various employment positions which produced maturity as well as enabled him to adapt and implement various organizational skills.  He also states that he deserved the discharge he received and that he is requesting a discharge upgrade to enlist in the California Army National Guard.   

3.  The applicant provides one character reference letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 6 June 1990.  The application submitted in this case is dated 21 August 2006.

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.  Having prior inactive and active service, the applicant enlisted in the Regular Army on 10 August 1989 for a period of 4 years.  He served as an infantryman. 

4.  The applicant’s service personnel records contain a continuation page of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) which shows that on an unknown date, nonjudicial punishment was imposed against the applicant for failure to repair, using disrespectful language, and disobeying a lawful order.  No other information is available. 

5.  On 5 April 1990, charges were preferred against the applicant for two specifications of breaking restriction, consuming alcohol while performing extra duty, two specifications of using disrespectful language, and assault.  Trial by special court-martial was recommended.

6.  On 11 April 1990, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge.  He elected not to make a statement in his own behalf. 

7.  On 24 April 1990, the intermediate commander recommended disapproval of the applicant’s request.

8.  On 10 May 1990, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 6 June 1990 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served a total of 1 year, 1 month, and 3 days of active service.  

10.  In support of his claim, the applicant provided a character reference letter from a previous employer.  He attests that the applicant was a good conscientious worker.      

11.  On 4 March 1993, the Army Discharge Review Board (ADRB) denied the applicant’s request for an honorable upgrade. 

12.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, 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.  

14.  Army Regulation 635-200, paragraph 3-7b, 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.

15.  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 (Army Regulation 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 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.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Since the applicant’s record of service included one nonjudicial punishment and serious offenses that led to referral of special court-martial charges, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 4 March 1993.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 3 March 1996.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence 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

JI______  __SP____  __QS____  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 Infante______
          CHAIRPERSON




INDEX

CASE ID
AR20060012434
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19900606
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.