RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009591 


	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:


Mr. William D. Powers

Chairperson

Mr. Gerald J. Purcell

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 an upgrade of his discharge.

2.  The applicant states that being homosexual does not mean that he is not a patriotic American.  He further adds that he told the Army psychiatrist that he wanted to stay in the Army, but once the men in his unit found out, he had to run. He concludes that being homosexual is not a crime.

3.  The applicant provides a copy of a Character Reference Letter, dated 7 May 2007; and a copy of an acceptance letter into the Maryland Community College's 2007 Practical Nursing program, dated 25 May 2007.

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 records show that he enlisted in the Regular Army on 9 July 1990.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunition Specialist).  The highest rank he attained during his military service was private/pay grade E-2.

3.  The applicant's records also show that he was awarded the National Defense Service Medal, the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  Item 21 (Lost Time) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that the applicant was reported absent without leave during the period 20 December 1990 through 23 January 1991 and 11 February 1991 through 20 February 1991.
5.  On 27 February 1991, the applicant underwent a psychiatrist evaluation.  He was found mentally responsible, able to distinguish right from wrong, and was cleared for any action deemed appropriate by his chain of command including separation in accordance with Army Regulation 635-200 (Personnel Separations).  The military psychiatrist indicated that the applicant was experiencing adjustment reaction to marital discord and that he was eager to get out of the service.  He also recommended the applicant be considered for administrative action as deemed appropriate by his chain of command to include separation.

6.  On 13 March 1991, court-martial charges were preferred against the applicant for being AWOL during the period on or about 20 December 1990 to on or about 24 January 1991 and during the period on or about 11 February 1991 to on or about 21 February 1991. 

7.  On 22 March 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for 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 in accordance with chapter 10 of Army Regulation 635-200.

8.  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 an under other than honorable 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 to submit a statement on his own behalf.

9.  In an undated statement, the applicant stated that he joined the Army to take advantage of the college fund and that at the time, his spouse wanted a divorce.  He further added that he wanted to save his marriage, but was turned down for leave, so he took time off on his own because he believed he had no choice.  He called his unit first sergeant to explain the situation, but the unit first sergeant did not provide any assistance.  His unit granted him leave at a later date; however, 
his wife still wanted a divorce, which led him to act a little crazy and ended up in the hospital at Fort Campbell, Kentucky.  He concluded that all he wanted was to do his job in the Army, get a college degree, and be happy in life.

10.  On 29 March 1991, the applicant's immediate and intermediate commanders recommended approval of the applicant’s discharge for the good of the service and that the applicant be furnished an under other than honorable discharge.

11.  On 10 April 1991, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 15 April 1991, 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 7 months and 22 days of creditable active military service and 45 days of lost time due to AWOL.

12.  There is no indication in the applicant's record of his sexual orientation or that he was labeled, bullied, or suffered as a result of sexual orientation.

13.  The applicant submitted a character reference letter, dated 7 May 2007 and issued by the Hospice and Palliative Care Center of Mitchell County, showing that he is goal oriented, committed to higher education, and a good financial manager. 

14.  The applicant submitted a letter, dated 25 May 2007 and issued by the Maryland Community College, showing  that he was accepted into the 2007 practical nursing program. 

15.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge.

16.  Army Regulation 635-200 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.

17.  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.

18.  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 that his discharge should be upgraded.

2.  There is no evidence in the applicant's records that show he was discharged because of his sexual orientation.

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.  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.  The applicant's record of service shows that he was charged with being AWOL on two occasions.  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.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __gjp___  __jgh___  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.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009591
SUFFIX

RECON

DATE BOARDED
20071127
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19910415
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.