RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   5 April 2007
	DOCKET NUMBER:  AR20060012465 


	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.




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

2.  The applicant essentially states that he feels that the due process in his separation proceedings was questionable, and that there were errors in the way evidence and his statement was obtained.  He also states, in effect, that he was young, broke, and feels that he was pressured to take a deal.  He further states that he feels that his punishment was too harsh, and worse than what most people got for the same offense.  He also stated that it was too severe compared with today’s standards.  He continued by essentially stating that he has been a good citizen since he was discharged, and asks the Board to consider how much time he has lived with the burden and guilt, and asks for a second chance on life.

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 7 March 1988, the date of his discharge from the Regular Army.  The application submitted in this case is dated 23 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.  The applicant’s military records show that he enlisted in the United States Army Reserve (USAR) on 2 September 1986.  He entered active duty on 
18 September 1986, and completed basic and advanced individual training, and was awarded military occupational specialty 19E (Armor Crewman).  While in initial entry training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions.  His offenses included assault, falsifying an official document with intent to deceive his company commander and to avoid training, and failing to go at the 

time prescribed to his appointed place of duty.  Collectively, his punishment consisted of forfeiture of $411.00, extra duty for 34 days, and restriction for 
34 days.  On 15 January 1987, he was released from active duty for training, and transferred back to his USAR unit.  On 2 April 1987, he reenlisted in the Regular Army.  He was then reassigned to Fort Lewis, Washington for what would be his first and only permanent active duty assignment.

4.  On 11 December 1987, charges were preferred against the applicant.  His offenses included conspiracy to commit larceny, and stealing four stereo speakers of a value of about $579.00, which was the property of another Soldier. 
His chain of command recommended that he tried by a special court-martial empowered to adjudge a bad conduct discharge.
 
5.  On 9 February 1988, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made this request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of at least one of the charges against him or of a lesser-included offense, which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

6.  In his request for discharge, the applicant acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

7.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an 

Under Other Than Honorable Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement on his own behalf.  

8.  On 12 February 1988, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, subject to his cooperation with court-martial counsel in the cases against two other Soldiers.  The proper approval authority directed that he be discharged under other than honorable conditions, and also directed that the applicant would be reduced to the lowest enlisted grade.  On 7 March 1988, the applicant was discharged accordingly. 

9.  On 5 July 1989, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

10.  The applicant essentially stated that he feels that the due process in his separation proceedings was questionable, and that there were errors in the way evidence and his statement was obtained.  He also stated, in effect, that he was young, broke, and feels that he was pressured to take a deal.  He further stated that he feels that his punishment was too harsh, and worse than what most people got for the same offense.  He also stated that it was too severe compared with today’s standards.  He continued by essentially stating that he has been a good citizen since he was discharged, and asks the Board to consider how much time he has lived with the burden and guilt, and asks for a second chance on life.

11.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.

14.  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 applicant contends that his discharge under other than honorable conditions should be upgraded.

2.  Although applicant essentially stated that he feels that the due process in his separation proceedings was questionable, and that there were errors in the way evidence and his statement was obtained, he did not provided any evidence which showed that this was the case.  

3.  The applicant’s contention that he was pressured to make a deal was not accepted.  He voluntarily submitted his request for discharge, and specifically stated that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.

4.  The applicant’s contention that his punishment was too harsh, and worse than what most people got for the same offense, and too severe compared with today’s standards was also noted.  However, the standards by which he was charged have not changed since his discharge, and it is unlikely that any other course of action would be pursued had the applicant committed the offenses at this time.  

5.  The applicant’s contention that he has been a good citizen since he was discharged was noted; however, good post service conduct alone is not a basis for upgrading a discharge.  

6.  It is clear that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

7.  The applicant's record of service shows that he received NJP under Article 15 of the UCMJ on three occasions, and was charged with conspiracy and larceny.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  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 also renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 5 July 1989.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 4 July 1992.  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

__LS  ___  __JR____  ___SF __  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.




_____Linda Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012465
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19880307
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7200.0000
2.

3.

4.

5.

6.