RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2008
	DOCKET NUMBER:  AR20070014464 


	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:


Ms. Margaret K. Patterson

Chairperson

Ms. Sherri V. Ward

Member

Mr. Jeffrey C. Redmann

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 states he was under stress from problems back home while he was serving in the Gulf War, which was the cause of his misconduct.  He also states that due to the fact that he had an outstanding military career prior to his discharge and served his country with honor, he should at least have his discharge upgraded. 

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 8 April 1991 and a DD Form 
214 (Report of Separation from Active Duty) with the period ending 10 December 1978.

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 11 June 1975 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 19E (Armor Crewman).  

3.  The applicant was honorably discharged on 10 December 1978 and immediately reenlisted on 11 December 1978.  On 4 March 1982, he was honorably discharged and immediately reenlisted on 5 March 1982 for a 6-year term of service.  On 3 December 1987, he was honorably discharged and immediately reenlisted on 4 December 1987 for a 6-year term of service.

4.  On 4 January 1990, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for being apprehended for driving under the influence (DUI).
5.  The applicant's court-martial charge sheet is not available.

6.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 8 April 1991 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "FOR THE GOOD OF THE SERVICE-IN LIEU OF COURT-MARTIAL" with a characterization of service of under other than honorable conditions.  The applicant completed a total of 14 years, 9 months, 28 days of creditable active service with no time lost.

7.  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.

8.  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.  

9.  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 prior honorable discharges are noteworthy and recognized in item 18 (Remarks) of his DD Form 214 or with a prior DD Form 214.  His discharge packet is not available, and there is no evidence and the applicant has not provided evidence that shows he suffered stress while serving in the Gulf War and that the stress was the cause of his misconduct while serving in the 

military.  It is noted that he received a GOMOR for DUI months prior to going to Southwest Asia.  Therefore, there is an insufficient basis to upgrade his discharge.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  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 the issuance of a general or honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MKP__  ___SV W    __JCR__  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.




___Margaret K. Patterson_
          CHAIRPERSON




INDEX

CASE ID
AR20070014464
SUFFIX

RECON

DATE BOARDED
21 FEBRUARY 2008
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0134.0000
2.

3.

4.

5.

6.