RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070018716 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, that his discharge be upgraded.

2.  The applicant makes no additional statement.

3.  The applicant's provides a statement from his wife in support of this case.

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's military record shows he enlisted in the Regular Army on 31 October 1977.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained while serving on active duty was in the rank of sergeant first class/pay grade E-7. 

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  On 24 May 1991, charges were preferred against the applicant for absenting himself from duty on 24 March 1991 without authority and with intent to avoid field exercises, for being derelict in the performance of those duties in that he willfully transported his military weapon, an M-16 rifle, in a privately owned vehicle thereby failing to properly secure it, and through negligence, discharge a service rifle in the vicinity of the Tactical Operations Center, tent of the 5th Battalion, 87th Infantry.  




5.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, and in so doing admitted guilt to the offense.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate; 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 because of an under other than honorable conditions discharge.  

6.  On 28 May 1991, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  

7.  The applicant's DD Form 214 shows that he was separated on 25 June 1991, under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial and furnished an under other than honorable conditions discharge.  The applicant's DD Form 214 also shows that he served 3 years, 10 months, and 26 days of active military service.  His records show no lost time.

8.  On 2 October 2007, the applicant's wife provided a statement in his behalf, in which she alleges that her husband was not legally represented.  The applicant's wife continues that he almost died, received all the blame, and had no choice but to except the terms of separation or not live.  The applicant's wife continues that her husband suffered for years with the embarrassment of being demoted, and had a difficult time with employment.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.  The applicant contends his discharge should be upgraded.

2.  The applicant's service record shows that charges were preferred against him for absenting himself from duty on 24 March 1991 without authority and with intent to avoid field exercises; for being derelict in the performance of those duties in that he willfully transported his military weapon, an M-16 rifle, in a privately owned vehicle thereby failing to properly secure it; and through negligence, discharging a service rifle in the vicinity of the Tactical Operations Center, tent of 5th Battalion, 87th Infantry on 24 March 1991; and that he voluntarily requested discharge in lieu of a trial by court-martial.

3.  Discharge under the provisions of Chapter 10 of Army Regulation 635-200 requires an admission of guilt to the offenses charged and usually results in a discharge under other than honorable conditions.  

4.  The applicant's records show a record of indiscipline. The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.




5.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking 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.  

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_RML_____  _GJP___  _SWF___  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.




          _____RML___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070018716



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508