RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20070001937 


	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. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. John G. Heck

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 that his discharge be upgraded.

2.  The applicant states, in effect, that his discharge has been a black mark in his file for the past 19 years and he has lived with the consequences of his actions for the past 19 years.

3.  The applicant did not provide any additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 19 August 1988, the date pf his discharge.  The application submitted in this case is dated 29 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 records show that he enlisted in the Regular Army on 16 October 1986.  Records further show that he completed basic combat training and advanced individual training and was awarded primary occupational specialty (MOS) 64C (Motor Transport Operator).  The highest rank the applicant attained while serving on active duty was private first class/pay grade E-3.

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  On 16 October 1988, charges were preferred against applicant for on or about 21 February 1988, conspiring with another individual to affect the destruction of a car and damaging the car by steering it over a cliff.

6.  On 18 May 1988, the applicant's company commander forwarded a memorandum to the applicant's battalion commander recommending a general court-martial.  The battalion commander concurred with the recommendation and on 20 May 1988 forwarded the memorandum to the division support command (DISCOM) commander recommending trial by general court-martial.

7.  On 9 June 1988, the applicant was advised of his rights by defense counsel and on 12 July 1988, the applicant waived his rights and an investigation into the charges against him.

8.  On 28 June 1988, the DISCOM commander reviewed the charges preferred against the applicant and recommended trial by general court-martial.

9.  On 18 July 1988, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial.

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the 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.  The applicant elected not to submit a statement on his own behalf

11.  On 10 August 1988, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 19 August 1988, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 1 year, 10 months, and 4 days of creditable active military service.

12.  On 27 November 1989, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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.

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 contends that his discharge should be upgraded.

2.  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.

3.  The applicant's record of service shows that he was charged with conspiring with another individual to affect the destruction of a car and with damaging the car by steering it over a cliff.

4.  Based on the applicant's 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.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 27 November 1989.  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 November 1992.  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

__lds___  __jlp___  __jgh___  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.



							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070001937
SUFFIX

RECON

DATE BOARDED
20070726
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19880819
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.