RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 March 2008
DOCKET NUMBER: AR20070018618
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
Ms. Deyon D. Battle
Analyst
The following members, a quorum, were present:
Mr. John T. Meixell
Chairperson
Ms. LaVerne M. Douglas
Member
Ms. Jeanette R. McCants
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 discharge under other than honorable conditions, be upgraded to an honorable or a general discharge.
2. The applicant states that he signed off for the good of the Army; however, he had no knowledge of being able to have his discharge upgraded. He states, in effect, that the type of discharge that he received stemmed from an incident that occurred off base, and he believes that the less than honorable discharge that he received is an injustice. He states that he excelled in all areas of his military experiences, and that he wishes to rectify his bad characterization of service.
3. The applicant provides no additional documentation 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 24 June 1988, the applicant enlisted in the Regular Army in Baltimore, Maryland, for 3 years, in the pay grade of E-1. He successfully completed his training as a petroleum supply specialist. He was transferred to Germany on 16 December 1988 and he was promoted to the pay grade of E-2 on 24 December 1988.
3. The available records show that on 13 September 1989, the applicant was confined at the United States Army Confinement Facility in Manheim, Germany and that he had been sentenced to serve 30 days. However, the reason for his confinement is not part of the available records. His records do show that while he was in confinement, he underwent a mental evaluation and he was diagnosed as having a personality disorder with anti-social and passive-aggressive
tendencies. The attending psychiatrist concluded that the applicant was not suitable for military service and that he was not likely to benefit from continued confinement. The psychiatrist further concluded that the prognosis for improvement of his personality disorder was poor and that he should be referred to a community mental health center for continued psychiatric care after his release from confinement.
4. The facts and circumstances pertaining to the applicants discharge are not on file. The Certificate of Release or Discharge from Active Duty (DD Form 214) that he was furnished shows that he was discharged on 8 December 1989, under other than honorable conditions, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.
5. A review of the available record fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
6. 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. A discharge under other than honorable conditions is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. 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 has failed to submit evidence that would satisfy this requirement.
2. The facts and circumstances surrounding the applicant's discharge are not on file. However, the available record shows that he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.
3. The applicant's contentions have been noted. However, there is no evidence in the available records, nor has the applicant submitted any evidence to support his contention that the type of discharge he received was unjust. In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__LMD__ __JRM___ __JTM__ 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 __
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