RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070012659 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 reconsideration of his earlier request that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states that he provides new evidence and argument.

3.  The applicant states that when he was assigned to Germany he was harassed by several peers.  He was harassed by a noncommissioned officer for being gay.  He did not realize his life was changing and so was his military career.  He was called many insulting names.  The charges that led to his discharge were in fact incorrect and untrue to say the least.

4.  The applicant states that since the “Don’t Ask, Don’t Tell, Don’t Harass, Don’t Pursue” policy was instituted the number of discharges of gay service members has actually increased.  Nearly 10 percent of gay service members said they have witnessed physical assaults.  Significant numbers also reported offensive or hostile gestures, threats or intimidation, and disciplinary actions not of the bigots but of their victims.  When the harassment was witnessed by someone senior to either the harassed or the harasser, 73 percent said the senior person did nothing to immediately stop the harassment.

5.  The applicant states that he made a statement with his request for discharge, but the statement was not even close (to the truth) or correct.  He was forced to sign off on that statement.  It was a forced issued by the Judge Advocate General’s office (i.e., the local Staff Judge Advocate).  

6.  The applicant states that nothing was ever said about the good things he did for his unit or about having the cleanest compound in the battery.  Only the negative actions were mentioned.  The denial of his honorable discharge has caused him many hardships.  He feels he has suffered this injustice long enough.

7.  The applicant provides no additional evidence except for the self-authored statement outlining his new argument.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060004027 on 21 September 2006.

2.  The applicant enlisted in the Regular Army on 6 November 1987.  He successfully completed training as a cannon crewmember and was assigned to Germany.

3.  On 20 November 1987, non-judicial punishment (NJP) was imposed against the applicant for impersonating a noncommissioned officer (NCO) by representing himself to be a sergeant in the charge of quarters of Casual Detachment and asserting the authority of an NCO by giving orders to a private.  

4.  On 23 May 1988, NJP was imposed against the applicant for breaking restriction.  

5.  The available records indicate that NJP was imposed against the applicant for being drunk and disorderly.  However, the record is void of the date and type of punishment that was imposed.

6.  On 23 June 1988, the applicant was counseled for not having his room ready for inspection.  During the counseling session, the applicant was informed that even though he had already been recommended for separation, his attitude was more negative than even before, and his behavior would not be tolerated.

7.  On 12 August 1988, charges were preferred against the applicant for being disrespectful in language to his superior NCO; for being disrespectful in language to his superior commissioned officer; for failure to obey a lawful order given by an NCO; for being disrespectful in language toward a sergeant; for being disrespectful in language to a staff sergeant; for willfully destroying a window in the battery billets by throwing a television set through said window; for willfully damaging, by striking with his hand, a light fixture in the battery billets; for assaulting a private by striking him with a dangerous weapon (swing blade); and for being drunk and disorderly.

8.  On 14 August 1988, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  Along with his request for discharge, he submitted a statement in his own behalf.  In the statement, he indicated that he joined the Army because he wanted to serve his country and because it was the best way to help his family.  He stated he was raised by his mother in a family of six, and he never knew his father.  He stated that aside from all of the other problems, the family did not have very much money, and one of his older brothers was severely mentally handicapped.  He stated it was really hard for him to be in Europe hearing about his family's problems and not being able to catch a flight home.  He stated he really hoped things would work out for him in the military, and he was not sure why things did not work out.  He stated he was opposed to the chapter 5 paperwork that was initially started on him.  It was only after the paperwork was taking so long that he began to get into trouble.  The applicant concluded his statement by requesting he be separated from the military with a general discharge so he could try to get a decent job.

9.  On 25 August 1988, the applicant’s request for discharge was approved by the appropriate authority.  

10.  On 31 August 1988, the applicant was discharged with a discharge UOTHC, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 9 months and 26 days of creditable active service with no lost time.

11.  In his initial application to the Board, the applicant stated he had been working for the military and around the military.  He stated he still believed in and supported the military code of conduct and all of the great things the military stands for.  He had achieved great things in his life; however, in order to achieve a higher status he was asking that his discharge be upgraded.

12.  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 UOTHC is normally considered appropriate.

13.  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.

14.  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 new argument has been carefully considered.  It appears he contends he was unjustly given nonjudicial punishment and charged with the offenses that led to his discharge as a result of being, or being thought to be, homosexual.

2.  The applicant contends that the charges that led to his discharge were in fact incorrect and untrue.  However, his request for discharge included an admission of guilt of the charges.  

3.  The applicant submitted a statement with his request for discharge, which statement mentioned only family problems.  He now contends that the statement was not even close to the truth or correct, and he was forced to sign off on that statement by the Staff Judge Advocate.  The applicant provides no evidence to show he was forced to make that statement.  Furthermore, in his initial application to the Board, when he was under no pressure from anyone in the Army, he did not raise any of the issues (harassment, verbal insults, unjust punishments, forced to make an untrue statement) he raises in his current application.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__klw___  __lmd___  __mjf___  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 to amend the decision of the ABCMR set forth in Docket Number AR20060004027 dated 21 September 2006.




___Kenneth L. Wright__
          CHAIRPERSON



INDEX

CASE ID
AR20070012659
SUFFIX

RECON

DATE BOARDED
20071106
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19880831
DISCHARGE AUTHORITY
AR 635-200, ch 10
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.