RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070013537 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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 under other than honorable conditions discharge be upgraded.

2.  The applicant makes no additional statement. 

3.  The applicant provides an undated copy of his resume.

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 enlisted in the Regular Army on 13 June 1979 for a 4-year term of service.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 63B (Light Wheeled Vehicle/Power Generator Mechanic).

3.  On 1 June 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for operating a passenger vehicle while drunk.

4.  The court-martial charge sheet is not available.  

5.  On 3 May 1983, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; 



that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide statements on his own behalf. 

6.  A DA Form 4126-R (Bar to Reenlistment Certificate), approved on 18 May 1983, shows the applicant was barred from reenlistment for pending a general court-martial on charges of aggravated assault and robbery.   

7.  On 18 May 1983, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an "Under Other Than Honorable Conditions Discharge Certificate."

8.  On 29 December 1983, the applicant was discharged, with an under other than honorable conditions discharge, by reason of "FOR THE GOOD OF THE SERVICE – IN LIEU OF COURT-MARTIAL."  The applicant completed 3 years, 11 months, and 21 days of creditable active service with no time lost.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 7 November 1994, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

10.  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, at any time after the charges have been preferred, 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. An under other than honorable discharge is normally considered appropriate.

11.  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.  

12.  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.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's records show that he received one Article 15 and was pending general court-martial charges of aggravated assault and robbery.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM       ___CD__  __RMN__  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
AR20070013537
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0133.0000
2.

3.

4.

5.

6.