RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060017398 


	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. Phyllis B. Mackey  

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 discharge, characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states, in effect, that his UOTHC should be upgraded to H.V.A. [abbreviation not recognized as a discharge category].

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 September 1990.  The application submitted in this case is dated 
4 December 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 record shows he enlisted in the Regular Army on 17 July 1987.  The applicant successfully completed basic reconnaissance training and advanced individual training at Fort Knox, Kentucky.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 19D (Cavalry Scout).  He was advanced to pay grade E-4 on 1 September 1989.

4.  Charges were preferred against the applicant on 31 July 1990, for violation of the UCMJ (Uniform Code of Military Justice), Article 125, for committing sodomy and in violation of the UCMJ, Article 134, for wrongfully and unlawfully making, under lawful oath, a false statement.
  
5.  On 14 August 1990, the applicant voluntarily submitted a request for discharge for the good of the service.  In his request, the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

6.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on the same day and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

7.  The applicant stated that he understood that if his request was accepted, he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge certificate.  He was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all 
benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

8.  On 25 August 1990, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge characterized as UOTHC and that he be reduced to the lowest enlisted grade.  

9.  The applicant was discharged in the rank/pay grade, Private/E-1, on 
10 September 1990, under the provisions of AR 635-200, Chapter 10.  He was credited with 3 years, 1 month, and 24 days total active service.

10.  On 27 October 1992, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for 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.

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 3-7a, 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, 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.  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's records show that charges were preferred against the applicant for committing sodomy and for wrongfully and unlawfully making, under lawful oath, a false statement.

2.  The applicant's voluntary request for separation was submitted under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.
3.  The evidence shows the applicant’s request for discharge was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.
 
4.  The type of separation directed and the reasons for his separation appear to have been appropriate considering all the available facts of the case.

5.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

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

7.  On 27 October 1992 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

8.   Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 27 October 1992.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 26 October 1995.  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

_RSV____  __DLL__  __WFC__  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
AR20060017398
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070531
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19900910
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.