RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060012781 


	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 a general discharge. 

2.  The applicant essentially states that he had three family deaths within an 
8-month period from October 1988 to June 1989.  He also states that “he requested to be let out of the service, but that he was supposed to conform according to his superiors.”   

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 5 June 1989, 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 Regular Army on 17 July 1986.  He completed basic and advanced individual training and was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  After serving an overseas tour in Germany, he was reassigned to Fort Campbell, Kentucky, and was assigned to the 584th Maintenance Company.

4.  On 13 March 1989, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for assaulting a female Soldier by slapping her on the behind with his hand.  His punishment consisted of reduction from private first class/pay grade E-3 to private/pay grade E-1, a forfeiture of $163.00 per month for 1 month (which was suspended until 
12 May 1989), and 45 days of extra duty.

5.  On 9 May 1989, charges were preferred against the applicant for willfully disobeying a lawful order, being disrespectful in language toward a noncommissioned officer, dereliction in the performance of his duties, violating a lawful general order by wrongfully consuming alcoholic beverages while in an on-duty  status, and being drunk and disorderly, which were offenses punishable under the UCMJ with a punitive discharge.

6.  On or about 25 May 1989, 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 Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his 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 the charge against him or a lesser included offense therein contained which also authorizes 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.  

7.  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 thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, and the maximum permissible punishment if found guilty.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

8.  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 Conditions Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an under 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 under other than honorable discharge.  Although the applicant indicated that statements in his own behalf were submitted with his request, there is no evidence that he submitted a statement.  He also waived his right to a medical examination.  

9.  On 1 June 1989, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished a Discharge Certificate Under Other Than Honorable Conditions.  On 
5 June 1989, the applicant was discharged accordingly.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  The applicant essentially stated that he had three family deaths within an 
8-month period from October 1988 to June 1989, but did not state who those three family members were.  It was noted that his mother and father had both died before he enlisted in the Regular Army.   

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 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.

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

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge. 

2.  It is clear that the applicant was charged with the commission of multiple 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.

3.  The applicant's record of service shows that he accepted NJP under Article 15 of the UCMJ for assaulting a woman, and was pending a trial by court-martial for committing five offenses of the UCMJ punishable with a punitive discharge.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 June 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
4 June 1992.  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

___JS___  __DH ___  ___JH___  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 Slone__________
          CHAIRPERSON




INDEX

CASE ID
AR20060012781
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070419
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
19890605
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.
144.7600.0000
2.
144.7510.0000
3.

4.

5.

6.