RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070007858 


	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

Ms. Loretta D. Gulley

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

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 be changed to honorable and that the reason for the separation be upgraded. 

2.  The applicant states, in effect, there were mitigating factors that were not given sufficient weight during the time of his separation.  He states that he was immature, experiencing family stress at the time.  He believes the action taken against him was due to him reprimanding an individual for an earlier incident.  He requests that the Board look favorably on his request.

3.  The applicant provides no additional documents in support of this application. 

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.  The applicant's DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he enlisted in the Regular Army on 27 June 1978, for a period of three years.  He completed the required training and was awarded military occupational specialty (MOS) 91Q (Pharmacy Specialist).  The highest rank he attained while serving on active duty was Staff Sergeant (E-6).

3.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that he was awarded the Army Service Ribbon; the Overseas Service Ribbon with the Numeral 3; the Good Conduct Medal, 3rd award; the Noncommissioned Officer Development Ribbon with Numeral 2; the Army Commendation Medal with 1st oak leaf cluster; the Army Achievement Medal; and the Expert Marksmanship Rifle Badge (M-16).

4.  Orders Number 002-100, Headquarters, U.S. Army Training Center and Fort Dix, Transition Point, Fort, Dix, New Jersey, dated 4 January 1990, shows that the applicant was discharged in accordance with AR 635-200 effective 4 January 1990. 

5.  The specific facts and circumstances surrounding the applicant’s active duty discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214 that contains the authority and reason for the applicant’s active duty discharge on 4 January 1990, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, with an under other than honorable conditions discharge for the good of the service in lieu of court-martial. The DD Form 214 he was issued confirms he completed a total of 
11 years, 6 months, and 8 days of creditable active military service.

6.  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.

7.  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.

8.  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.  An undesirable discharge is normally considered appropriate.

9.  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.

10.  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’s contentions were carefully considered.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.  

2.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS___  ___CD__  __QAS __  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

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.




      _ Linda D. Simmons ____
          CHAIRPERSON





INDEX

CASE ID
AR20070007858
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/14
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.