RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 July 2007
	DOCKET NUMBER:  AR20070017789 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jose A. Martinez

Member

Mr. William F. Crain

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 honorable.

2.  The applicant states, in effect, that he believes that he was provided inadequate counsel and did not fully understand the gravity of receiving such a discharge.  He further states that he received the Army Good Conduct Medal, Army Achievement Medal, Iraq Campaign Medal, and the Marksman Marksmanship Qualification Badge, achievements that outweigh the face value of his discharge.  In light of recent world events, the applicant feels compelled to rejoin the military.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 12 December 1991, the date of his discharge.  The application submitted in this case is dated 21 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.  On 28 January 1987, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 95B1O (Military Policeman).

4.  On 20 June 1989, the applicant reenlisted in the Regular Army for 3 more years. 

5.  On 21 November 1991, the applicant requested to be discharged for the good of the service in lieu of charges that he understood to have been preferred against him under the Uniform Code of Military Justice for violation of Article 
117 (breach of peace), for provoking speech and gestures, and for violation of Article 128, for assault.  The actual charge sheet is not available for review and the record is void of any further specifics.

6.  On 21 November 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that, if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

8.  On 22 November 1991, the separation authority approved the applicant’s request for discharge and directed that he be issued a discharge under other than honorable conditions.  On 12 December 1991, the applicant was discharged accordingly.  He had completed a total of 4 years, 10 months and 15 days of creditable active military service.

9.  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.

10.  Army Regulation 635-200 (Personnel Separations) 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.



11.  Under the UCMJ, the maximum punishment allowed for violation of Article 117, for breach of the peace is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months; and for violation of Article 128, for assault, is a punitive discharge, 6 months confinement and total forfeitures.  

DISCUSSION AND CONCLUSIONS:

1.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The applicant has not provided any evidence to substantiate his assertion that he did not receive adequate counsel.  Furthermore, there is no available evidence to show that he had any mitigating circumstances or a defense for the charges. 

3.  The applicant's overall quality of service was taken into consideration at the time of his request to be discharged for the good of the service.  However, it did not sufficiently mitigate his misconduct.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 December 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
11 December 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

__JEA __  __JAM___ _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.




___  James E. Anderholm _________
          CHAIRPERSON




INDEX

CASE ID
AR20060017789
SUFFIX

RECON
 
DATE BOARDED
20070712 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19911212
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.