RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070015082 


	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. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable

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 changed to an honorable discharge.  He also requests that the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 28 January 1983 be changed. 

2.  The applicant states, "When I was discharged from the service in 1983, I left the military in disgrace.  I felt that I was being railroaded out because of a personality conflict between myself and the commander.  I have not made an attempt to correct this matter until this year.  I flat out got tired of walking around with this matter hanging over my head."  The applicant states, in effect, that he requested a copy of his military records and there is no record of the charge sheet, no court-martial packet, or any kind of disciplinary papers.  Based the lack of evidence in his military file and the fact that he was railroaded his discharge should be changed and he should be reissued a new DD Form 214.  

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 4 December 1978; a DD Form 214 with the ending period 11 February 1981; a DD Form 214 with the ending period 28 February 1983; a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 19 May 1975; a DD Form 4, dated 30 May 1975; a DD Form 4, dated 5 December 1978; Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 338-325, dated 
5 December 1978; and a DA Form 2-1 (Personnel Qualification Record – Part II) reviewed on 26 August 1982.

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 30 May 1975.  He was honorably discharged on 4 December 1978 for the purpose of immediate reenlistment on 5 December 1978.

3.  On 11 February 1981, the applicant was honorably discharged from active duty and was appointed as a Warrant Officer (WO)/W1 in the U.S. Army Reserve (USAR) and entered active duty on 12 February 1981.  

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

5.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 with the period ending 28 January 1983 shows that he resigned his commission and was discharged in lieu of court-martial, in the pay grade of W1, on 28 January 1983 under the provisions of chapter 5 of Army Regulation 635-120 (Officer Resignations and Discharges) by reason of "CONDUCT TRIABLE BY COURT MARTIAL" with a characterization of service of under other than honorable conditions.  Item 25 (Separation Authority) erroneously shows "CHAPTER 5, AR 635-200" (the enlisted separation regulation).

6.  Army Regulation 635-120 at that time prescribed policies and procedures governing the resignation and discharge of officer personnel.  Chapter 5 governed resignation for the Good of the Service when: Court-martial charges were preferred against the officer with a view toward trial by general court-martial; he or she was under a suspended sentence of dismissal; or he or she elected to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) prior to general court-martial charges being preferred against him or her under UCMJ and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  (If the officer elected to resign after general court-martial charges were preferred, paragraph 
5-2 applied.  If he or she requested separation after being recommended for elimination, chapter 4 or 8 as appropriate applied.)  The tender of resignation for the good of the service did not preclude or suspend disciplinary proceedings in a case.  Whether such proceedings would be held in abeyance pending final action 



on a resignation tendered under the provisions of this chapter was a matter to be determined by the commander exercising general court-martial jurisdiction over the officer concerned.

7.  Army Regulation 635-120 (Officer Personnel), then in effect, set forth the basic authority for the release from active duty and discharge of officer personnel.  The character of service would be predicated on the officer’s behavior and performance while a member of the Army.  Characterization would normally be based on a pattern of behavior and duty performance rather than an isolated incident.  However, there were circumstances in which conduct reflected by a single incident could provide the basis of characterization of service.  A separation under honorable conditions would normally be appropriate when an officer submits an unqualified resignation under circumstances involving misconduct or was separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation would be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was railroaded out of the military.  He contends that there is no record of charges or discharge packet in his military file and that his characterization of service and narrative reason for separation should therefore be changed.  There is no evidence and the applicant has not provided evidence that shows he was railroaded out of the military.  Therefore, there is no basis for this argument.  

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights and that the character of service appropriately describes the misconduct with which he was charged.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JBG  __  __DWS _  __RSV __  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.




___ James B. Gunlicks _
          CHAIRPERSON




INDEX

CASE ID
AR20070015082
SUFFIX

RECON

DATE BOARDED
6 MARCH 2008
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

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

3.

4.

5.

6.