RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 10 July 2007 
	DOCKET NUMBER:  AR20070001432 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

Member

Mr. Edward E. Montgomery

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 his discharge be upgraded.

2.  The applicant states, in effect, that there was no evidence to accuse him of stealing.  The applicant continues that he did not disobey a lawful order and claims he encountered racism in the courtroom.  The applicant concludes that the only reason he requested separation was because he was promised an honorable discharge during his court-martial.

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 29 December 1978, the date of his discharge.  The application submitted in this case is dated 22 January 2007.

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 that he enlisted in the Regular Army on 18 January 1977 for a period of three years.  Records show he completed basic combat and advanced individual training and that the highest rank he attained while serving on active duty was private/pay grade E-2.  The applicant's records do not show any significant acts of valor during his military service

4.  On 11 January 1979, the applicant was convicted by a Special Court-Martial for the following offenses: on or about 8 August 1978, disrespecting a superior noncommissioned officer; on or about 26 June 1978, wrongfully possessing a concealed weapon; on or about 22 August 1978, assaulting his First Sergeant; on or about 9 August 1978, disrespecting a noncommissioned officer; on or about 28 September 1978, one specification of disobeying a lawful order and one specification of disrespecting a superior; and on or about 25 October 1978, assaulting another Soldier.

5.  On 11 January 1979, the applicant was sentenced to reduction to private/pay grade E-1, a forfeiture of $200.00 per month for 6 months, and confinement at hard labor for 4 months.

6.  Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, Washington Special Court-Martial Order Number 3, dated 11 January 1979, directed only so much of the sentence as provided for confinement at hard labor for 9 days.  These orders further show that the applicant requested discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged and issued an Other than Honorable Conditions Discharge Certificate and that he completed a total of 2 years and 7 days of creditable active military service.

8.  Chapter 10 of Army Regulation 635-200 (Personnel Separation), provides that the applicant must have indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He must have 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.

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 statue of limitations.

10.  The applicant provided a self-authored statement which essentially states that the court had no evidence accusing him of stealing and he did not disobey a lawful order.  The applicant argues that he encountered racism in the courtroom. The applicant concludes that the only reason he requested separation was because he was promised an honorable discharge during his court martial.

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, which 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.  At the time, an undesirable discharge was 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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable discharge should be upgraded because of unjust evidence, racism, and a promise made to him.

2.  The applicant's records show that he was tried and convicted by a Special Court-Martial for disrespect, possession of a concealed weapon, assault, and disobeying an order. 

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his 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, the applicant is not entitled to either a general or an honorable discharge.

5. The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in the discharge.  The ABCMR will grant a change if it is determined that the characterization of service or the reason for discharge were improper or inequitable.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 December 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on    28 December 1981.  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

_SP____  _EM____  __KAN ___  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.




__Kathleen A. Newman_
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.