RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070007670 


	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:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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 under other than honorable conditions be upgraded to honorable.  The applicant also requests to personally appear before the Board.

2.  The applicant states that he did nothing wrong and was told if he did not take the discharge he would be charged with dereliction of duty.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 18 May 1986, the applicant was appointed as a second lieutenant (pay grade O-1), air defense artillery, in the United States Army Reserve.  He was ordered to active duty on 19 October 1986.

3.  The applicant completed his training and was assigned for duty at Fort Bliss, Texas.  

4.  On 1 August 1988, the applicant was promoted to first lieutenant, pay grade O-2.

5.  On 9 June 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for willfully exposing himself in an indecent manner.  The punishment included a forfeiture of $1,000.00 pay per month for 2 months.  The applicant did not appeal the punishment.


6.  On 31 July 1989, the applicant received an administrative letter of reprimand for repeatedly failing to repay monies owed to three different financial corporations.  The applicant elected not to make a statement and the letter was filed in his Military Personnel Record Jacket.

7.  On 15 September 1989, a United States Army Criminal Investigation Command Report of Investigation stated that the applicant had stolen United States Government funds totaling $3,681.17 from the Range Command Dining Facility, Fort Bliss, Texas.  He had manipulated cash collection sheets and destroyed or disposed of three cash collection books to conceal the larceny.  

8.  On 12 October 1989, charges were preferred under the Uniform Code of Military Justice for violation of Article 92 (dereliction of duty), three specifications; for violation of Article 108 (destruction or disposal of military property less than $500.00); for violation of Article 121 (larceny, more than $500.00); for violation of Article 133 (conduct unbecoming an officer); and for violation of Article 134 (making a false statement under oath). 

9.  The applicant voluntarily tendered his resignation from the United States Army for the good of the service under the provisions of Army Regulation 635-120, chapter 5, in lieu of court-martial or a board of officers.  He further stated that he had not been coerced and that he fully understood the implications of this action. He also stated that he had been fully advised and counseled by a member of the Trial Defense Service, Fort Bliss Field Office, and was afforded the opportunity to present matters in extenuation, mitigation, or defense of his case.  He also understood that his resignation was considered under other than honorable conditions and that he would not be entitled to compensation for unused accrued leave or for separation pay. 

10.  On 12 October 1989, the applicant’s company commander indicated that the applicant would be scheduled for a medical examination in accordance with Army Regulation 635-120, paragraph 2-1.  

11.  On 2 November 1989, the commanding general indicated that the trial of the court-martial charges against the applicant were held in abeyance pending resolution of the applicant’s request for resignation.





12.  On 7 December 1989, the Deputy Assistant Secretary, Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review approved the applicant’s request for resignation for the good of the service and directed that he be discharged under other than honorable conditions.  On 1 January 1990, the applicant was discharged accordingly.  He had completed a total of 8 years, 8 months and 25 days of creditable active military service.

13.  On 26 May 1995, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

14.  Army Regulation 635-120 sets forth the basic authority for officer resignations and discharges.  Chapter 5 of that regulation provides, in pertinent part, that an officer who has charges pending with a view toward a general court-martial may submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge is authorized, a resignation for the good of the service is normally accepted as being under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  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 the aforementioned requirement.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SAP __  __EEM__  __QAS __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





__      Susan A. Powers_________
          CHAIRPERSON




INDEX

CASE ID
AR20070007670
SUFFIX

RECON
 
DATE BOARDED
20071004 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19900101
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.8100
2.

3.

4.

5.

6.