RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070009806 


	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. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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 he served the Army honorably from June 1987 to December 1991 and that "he was unjustly treated and harassed by a racist company commander."

3.  The applicant provided a self-authored letter, dated 5 July 2007 and a copy of DA Form 2627 [Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)], dated 3 December 1991, in support of his 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.  With prior service in the U.S. Army Reserve and the Reserve Officer Training Corps (ROTC) program, the applicant enlisted in the Regular Army for a period of 3 years on 8 July 1987.  He completed advanced individual training and was awarded MOS 94B (Food Services Specialist).  He was assigned to the 407th Supply and Transportation Battalion, 82nd Airborne Division, Fort Bragg, North Carolina.  On 5 December 1989, he reenlisted for a period of 6 years, under the current station stabilization and selective reenlistment bonus programs.  He was promoted to sergeant/pay grade E-5 on 1 March 1989 and to staff sergeant/pay grade E-6 on 6 April 1990.

3.  The applicant's records show that he served in Southwest Asia in support of Operations Desert Shield/Storm from 31 August 1990 to 3 April 1991.  His awards and decorations included the Southwest Asia Service Medal with two bronze service stars, the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the NCO Professional Development 
Ribbon, the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), the Kuwait Liberation Medal, and the Parachutist Badge.  His records not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on 3 December 1991 for being absent without leave during the period from on or about 20 November 1991 to on or about 25 November 1991; dereliction in the performance of his duties on or about the period before
19 November 1991; and disobeying a lawful order on or about 19 November 1991.  His punishment consisted of reduction to the grade of sergeant/pay grade E-5, forfeiture of $634 pay for two months (suspended until 1 June 1992), and
45 days of restriction.  The applicant appealed his punishment, but his records show that he did not submit matters in a timely fashion, and that on 10 December 1991 the next higher commander denied his appeal accordingly.

5.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows that the applicant was reported AWOL from 5 December 1991 through 19 July 1992.

6.  On 4 August 1992, court-martial charges were preferred against the applicant for being AWOL during the period from on or about 5 December 1991 to on or about 20 July 1992.

7.  On 4 August 1992, 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 UCMJ, the possible effects of a discharge under other than honorable conditions discharge if his request was approved, 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 (Personnel Separations).

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 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

9.  On 11 August 1992, the acting immediate commander recommended approval of the applicant’s request.  In his endorsement, he stated that the applicant’s conduct rendered him triable by court-martial and that based on his record, punishment would have yielded minimal rehabilitative effect.  He further recommended discharge under other than honorable conditions.

10.  On 11 August 1992, the intermediate commander concurred with the acting immediate commander’s comments and recommended the applicant’s discharge under other than honorable conditions.

11.  On 17 August 1992, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the grade of private/pay grade E-1.  On 9 September 1992, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 4 years, 10 months, and 9 days of creditable active military service with 233 days of lost time due to AWOL.

12.  In a self-authored statement, dated 5 July 2007, the applicant stated that his discharge was inequitable and based on isolated incidents.  He described himself as a solid Soldier who served proudly during Operations Desert Shield/Storm despite encountering racial prejudice.  He further added that after redeployment to Fort Bragg, he took a 4-day pass during the Thanksgiving holiday and was surprised when his commander reported him AWOL during this period.  He was burned out mentally and physically and accepted his NJP despite knowing that his chain of command was out to get him.  He even had thoughts of committing murder but realized there was no point in harming anyone.  He felt there was no one to help him, so he went AWOL and regretted doing that ever since.  He concludes that he misses his job and feels that he did the right thing at the time.  

13.  On 20 August 1996, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

14.   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.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  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 he is entitled to an upgrade of his discharge.

2.  There is no evidence in the applicant's record that he suffered any discrimination during his military service or that prejudice contributed to his repeated patterns of misconduct and indiscipline.  The records further do not show that the applicant addressed any discrimination issues with his chain of command or with any supporting facilities at the installation to which he was assigned.  

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial.  By doing so, the applicant admitted guilt to the offense of being AWOL.  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.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  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

__jtm___  __jrm___  __swf___  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.



						John T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009806
SUFFIX

RECON

DATE BOARDED
20071129
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19920909
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.