RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 31 May 2007 
	DOCKET NUMBER:  AR20060015826 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. William F. Crain 

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 discharge be upgraded to a general discharge under honorable conditions. 

2.  The applicant states, in effect, that he was serving in Iraq during Operation Desert Storm when he received the news of his father's death.  He also states, in effect, that he arrived home after the funeral services had been held and felt enormous grief in not having had the opportunity to tell his father goodbye.  The applicant further states, in effect, that it was because of this grief that he behaved in a way that he would have never behaved under normal circumstances.  The applicant offers that since his discharge he has remarried and raised 5 children, owns his own home, is employed as a welding supervisor, and has worked hard over the past 15 years to be a productive contributing citizen.

3.  The applicant provides a self-authored statement, dated 29 October 2006;
DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 29 October 2006; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of
5 August 1991; Headquarters, Bravo Company, 2nd Battalion, 187th Infantry, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, memorandum, dated 17 July 1991, subject: Chapter 10 Proceedings, Rebuttal Letter [Applicant's Rank, Name, and Social Security Number]; Statement, undated, 1SG Curtis T. E____; Statement, undated, 1LT Larry T. L____; Statement, dated 17 July 1991, SSG Paul E. H_____; Statement, undated, SSG Kenneth B. L____; and an undated Department of the Army, Certificate of Achievement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 5 August 1991, the date of his discharge from the Army.  The application submitted in this case is dated 29 October 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 service records show that he enlisted in the U.S. Army Reserve for a period of 8 years on 11 July 1986.  He subsequently enlisted and entered active duty in the Regular Army (RA) for a period of 4 years on 1 October 1986.  The applicant completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was assigned to the 2nd Infantry Division in the Republic of Korea from 8 January 1987 to 7 January 1989.  On 10 May 1990, the applicant was honorably discharged for the purpose of his immediate reenlistment.

4.  On 11 May 1990, the applicant reenlisted in the RA for a period of 3 years.
He served in support of Operation Desert Storm from 11 September 1990 to
9 April 1991.  The highest grade he attained was specialist four/pay grade E-4.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant's military service records are absent a copy of the documentation related to the applicant's administrative separation action.

6.  The applicant's military service records contain a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 2 July 1991.  This document contains the following entry, "Soldier was seen at CMHS [Community Mental Health Services, Medical Activity, Fort Campbell, Kentucky] for eval[uation] for Ch[apter] 14 proceedings.  [Applicant] cleared psychiatrically to attend proceedings."  This document also shows that it was signed by the Behavior Science Noncommissioned Officer.

7.  The applicant's military service records contain a copy of Headquarters,
101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, Orders 213-297, dated 1 August 1991, which show, in pertinent part, that the applicant was assigned to the U.S. Army Transition Point, Fort Campbell, Kentucky, for the purpose of being discharged on 5 August 1991.  These orders also contain the following entry, "ADDITIONAL INSTRUCTIONS:  SOLDIER IS SEPARATED UNDER THE PROVISIONS OF CHAPTER 10, AR 635-200."

8.  The DD Form 214, issued to the applicant upon his separation, shows that he was discharged on 5 August 1991, in accordance with the provisions of Army Regulation 635-200, Chapter 10 (For the Good of the Service).  The applicant's Separation Program Designator (SPD) Code was "JFS" and his character of service was "Under Other Than Honorable Conditions."   At the time of his discharge he had completed 4 years, 10 months, and 5 days active service.

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

10.  In support of his application, the applicant provides a copy of his rebuttal letter to the Chapter 10 proceedings, which shows, in pertinent part, that he requested an honorable or general discharge under honorable conditions based upon his service in support of Operation Desert Shield/Desert Storm and the awards and decorations he earned during his nearly 5 years of active duty service.  The applicant also acknowledged responsibility for the incident, stating it was a one-time wrongful act for which there was no excuse.  The applicant also provides statements from 3 noncommissioned officers and 1 officer assigned to his unit at the time and also a Certificate of Achievement from his battalion commander.  The statements and certificate provide evidence of the applicant's professional attitude, strong work ethic, and technical proficiency.  The statements also indicate that the applicant's misconduct was an aberration of his normal behavior.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of the Personnel Separations regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

12.  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.


13.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

14.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's discharge, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  This regulation identifies the SPD code of "JFS" as the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to a general discharge under honorable conditions because, as a direct result of his grief, he behaved in a way that he would have never behaved under normal circumstances after receiving  news of his father's death.  The applicant also contends, in effect, since his discharge from the Army he has been a responsible husband, father, and citizen and offers his post-service conduct in support of his request.

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, Chapter 1 (General Provisions), which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows that at the time the applicant was being processed for administrative separation from the Army, he was seen at the Community Mental Health Service, Medical Activity, Fort Campbell, Kentucky, and cleared for separation proceedings.  There is no evidence of record, and the applicant provides insufficient evidence to support his contention that his grief contributed to his misconduct during the period of service under review.  In addition, there is no evidence that indicates the significant life-event that the applicant experienced was of any greater personal impact than that which other Soldiers also experienced while serving in the U.S. Army during this period of time, yet successfully completed their military service commitment.

4.  The applicant's contentions regarding his post-service achievements and conduct were carefully considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

5.  In view of the foregoing, the applicant’s discharge accurately reflects his overall record of service.  In this regard, the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 August 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
4 August 1994.  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

___WFC_  ___DLL__  ___RSV _  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 F. Crain_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015826
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/31
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19910805
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
For the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.