RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	22 April 2008  
	DOCKET NUMBER:  AR20080002247 


	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.










The following members, a quorum, were present:














	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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was not discharged by court-martial.  At the court-martial they dropped his pay grade from E-5 to E-1 and punished him with hard labor.  It was unjust so he told his first sergeant he would like to get out of service.  So, they discharged him under other than honorable conditions.  By rights, they should not have released him until the expiration of his term of service date.

3.  The applicant states that he was selected for jury duty but when he told the judge, he was told he couldn’t serve due to his under other than honorable conditions discharge.  He adds that he would also like to continue his Federal civilian job if he could.

4.  The applicant added an additional statement that it was wrong for "them" to send a copy of his DD Form 214 to California to the Director of Veterans Affairs without his consent.  His home of record was Alaska and he is an Alaskan resident.

5.  In support of his request, the applicant provides a copy of copy 1 and 4 of his DD Form 214, Certificate of Release or Discharge from Active Duty; five character reference letters, all dated in January and February 1991, which were apparently used in his court-martial; a copy of three orders which award him the Good Conduct Medal (1st and 2nd Award) and the Army Commendation Medal; and eleven certificates which include certificates of training, a certificate of participation in Brim Frost ’89, three diplomas, a certificate of Promotion, a certificate of affiliation in the Ordnance Corps, and two certificates of achievement.

6.  Following receipt of the applicant's request for an upgrade of his discharge, the applicant's Member of Congress (MOC) intervened on his behalf.  The applicant reported to him his discharge had been handled improperly.  The applicant's MOC forwarded the applicant's request for review and asked that consideration be given the applicant for an upgrade of his discharge.





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 8 June 1983.  Following completion of basic combat training at Fort Jackson, South Carolina, he completed advanced individual training at Fort Ord, California, and was awarded the primary military occupational specialty 63B, Light Wheel Vehicle Mechanic.

3.  The applicant was assigned for duty in Alaska on 30 April 1985.  On 20 June 1985, he was promoted to the rank of Sergeant.  He served honorably and on 2 February 1988 he was discharged for the purpose of immediate reenlistment.  On 3 February 1988, the applicant reenlisted in the Regular Army.

4.  On 12 February 1991, the applicant received a special court-martial.  He was found guilty of wrongfully communicating a threat to kill his spouse, for assaulting his spouse, and for unlawfully striking his spouse.  The applicant was sentenced to reduction to pay grade E-1, to forfeit $400.00 pay per month for six months, to be restricted for two months, and to perform hard labor without confinement for two months.  Only so much of the sentence that provided for a forfeiture of $400.00 pay per month for two months, reduction to the pay grade of E-1, restriction, and hard labor without confinement for two months was approved and ordered executed on 25 March 1991.

5.  On 27 February 1991, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychologist, an Army Medical Service Corps officer, found him to be mentally responsible, 

considered to have the mental capacity to understand and participate in separation proceedings, and to meet the retention standards of AR 40-501, chapter 3.  Based on this mental status evaluation, the psychologist cleared the applicant for any administrative action(s) deemed appropriate.

6.  On 4 March 1991, the applicant was counseled by his unit commander.  He was advised of the type of discharge he could receive and the effects that it could have upon his receipt of veterans benefits and the prejudice he could expect to encounter in civilian life.  The applicant responded to this counseling by stating that his wife had set him up and lied about everything.  He never assaulted her in any way but when a jury finds you guilty you can’t do anything about it.  He added that he was not given a fair trial in court because his lawyer didn’t even cross-examine most of the witnesses and he acknowledged he should have gotten a civilian lawyer to defend him.

7.  On 12 March 1991, the applicant underwent a second mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluator, an Army Physician’s Assistant, found him to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  No other entries were made on the resulting DA Form 3822-R, Report of Mental Status Evaluation.

8.  On 25 March 1991, the applicant was counseled by his unit commander.  He was advised of the type of discharge he could receive and the effects that it could have upon his receipt of veterans benefits and the prejudice he could expect to encounter in civilian life.  The applicant responded to this counseling by stating that his career had been excellent and he was an excellent Soldier who preferred to receive a general, under honorable conditions discharge.

9.  On 1 April 1991, the applicant’s unit commander notified him that he was recommending that he be discharged from the Army under the provision of Army Regulation 635-200, Chapter 14, paragraph 14-12c.  The reason for his proposed action was his court-martial conviction for communicating a threat and for assault.

10.  On 1 April 1991, the applicant acknowledged his commander’s notification of his intentions to separate him for his misconduct.  The applicant requested representation by a military attorney and opted to submit a statement in his own 

behalf.  In his acknowledgement he stated he understood that he could expect to encounter substantial prejudice in civilian life if an under other than honorable discharge were issued to him.  He also acknowledged that as a result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he should expect to encounter substantial prejudice in civilian life.

11.  On 1 April 1991, the applicant submitted his personal statement.  In his statement, the applicant referenced accomplishments he had achieved in his active duty service which included his receipt of the Army Commendation Medal, an Army Achievement Medal, two awards of the Good Conduct Medal, and numerous certificates and letters.

12.  The applicant stated the incident for which he was being considered for separation was the only negative blemish on his otherwise spotless career.  He stated he was well respected as a mechanic and Soldier by all who worked with him and that he would forever maintain his innocence as to the charges that placed him in the position he was in; however, he accepted the fact that he was found guilty and that his Army career was over.  He stated he accepted the responsibility and the reality of the situation, regardless of his guilt or innocence.

13.  The applicant continued his statement acknowledging that he had lost his career and family, which included two small children that he had to continue to support.  Everything he had worked toward for approximately 8 years was slowly coming to an end and all he would have to show for his service to his country would be his experience and his discharge certificate.  He asked that consideration be given to granting him a general, under honorable conditions discharge.

14.  On 2 April 1991, the applicant's unit commander submitted his recommendation that he be separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, prior to the expiration of his term of service.  The reason for his proposed action, the commander submitted, was his court-martial conviction for communicating a threat and for assault.  The commander acknowledged that the applicant had no record of any other disciplinary action, including non-judicial punishment; however, he also added he did not consider it feasible or appropriate to accomplish other disposition of the applicant’s case because of the mandatory requirements of Army Regulation 635-200, Chapter 14-12c.

15.  The applicant's battalion commander, in his recommendation, stated he had read the applicant’s appeal for a general, under honorable conditions discharge; and he had no argument with his rationale.  His duty performance had been good and he otherwise had not been a disciplinary problem; however, he had been convicted for threatening to kill his wife, for striking her, and for threatening her with a knife.  Because of this, the battalion commander indicated he had no potential for further service in the Army and concurred with the action to discharge him.  He recommended the applicant’s service be characterized as under other than honorable conditions and that a rehabilitative transfer be waived.

16.  On 3 April 1991, the Acting Commander, 6th Infantry Division (Light) and Fort Wainwright, Alaska, approved the applicant's discharge and waiver of rehabilitative transfer and directed that he receive a discharge with his service characterized as under other than honorable conditions.

17.  The applicant was discharged with an under other than honorable conditions discharge in the rank and pay grade of Private, E-1, on 10 April 1991, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c.  On the date of his discharge, the applicant had completed 7 years, 10 months, and 3 days Net Active Service This Period, with no time lost.

18.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

19.  The character reference letters/memoranda the applicant submitted for the Board’s consideration were all dated in January and February 1991 and were apparently used in his court-martial.

a.  One character reference, MSG ASP, described his duty performance and referred to him as one of the best noncommissioned officers in the Army.  He said the applicant’s ability to perform under pressure was above reproach.

b.  Another character reference, 1SG JEP, described the applicant’s performance of duty as being “outstanding.”

c.  Another character reference, Ms. PMG, described the contributions made by the applicant at the auto crafts shop.  She described the applicant’s duty performance to be “exceptional.”  She added that he did his job without supervision and his ability to perform under pressure and to maintain a positive, cheerful attitude was noteworthy.
d.  Another character reference, Mr. AWM, stated he had worked with the applicant for 5 years and he had watched him advance through his own initiative. He added that the job he did was high stress but he handled it with a great deal of control.  He had the highest regard for the applicant.

e.  Another character reference, Mr. CAM, stated he had worked with the applicant for 5 years and throughout this time he had shown the highest standards of workmanship and responsibility.  He had excellent character, was always keen to learn and was always willing to give a helping hand to those in need.

20.  Item 7.a (Place of Entry into Active Duty) and Item 7.b. (Home of Record at Time of Entry), of the applicant's DD Form 214, show he entered the Army at Oakland, California and his Home of Record was San Francisco.  In Item 20, of the DD Form 214, the applicant responded in the affirmative for the distribution of Copy 6 of the DD Form 214 to the California Director of Veterans Affairs.  It is acknowledged that at the time of his discharge, his "Mailing Address at the Time of Separation” was Anchorage, Alaska.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

22.  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, 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.

23.  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 separation specifically allows such characterization.

24.  Table 3-1, Army Regulation 635-5, provides the policy and procedures for the distribution of the DD Form 214 at the time of an individual's separation.  Copy 6 of the DD Form 214 for all service members, if requested in item 20, DD Form 214, will be forwarded to the proper State Director of Veterans Affairs.  If no Director of Veterans Affairs is selected, copy 6 is to be offered to service member or destroyed.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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 evidence of record shows the applicant was tried and convicted for threatening to kill his wife, for striking her, and for threatening her with a knife.

3.  When the applicant was counseled by his unit commander of his intentions to separate him from the Army prior to the normal expiration of his term of service, the applicant responded to the counseling by stating that his wife had set him up and lied about everything.  He stated he had never assaulted her in any way but was nevertheless found guilty by the jury.  The applicant did not explain the basis for this statement and what might have contributed to his apparent rage when the event occurred.  He further stated he was not given a fair trial in court because his lawyer did not cross-examine most of the witnesses and later he felt he should have gotten a civilian lawyer to defend him.

4.  The overall quality of the applicant’s service was considered.  The record does not contain evidence he was ever subjected to non-judicial punishment and the battalion commander admitted that the applicant had not been a disciplinary problem to his unit.  The court-martial he was convicted by was the only apparent blemish on the applicant’s record.  

5.  The record shows the applicant was awarded two Good Conduct Medals, an Army Commendation Medal, and an Army Achievement Medal which would normally warrant special recognition; however, the crimes for which he was convicted were serious and of a violent nature.

6.  The character reference letters the applicant submitted to the Board were considered.  These character references depicted a Soldier who had the ability to 

perform under pressure; an individual who maintained a positive, cheerful attitude; an individual who confronted stress with a great deal of control; and an individual who always showed the highest standards of responsibility.

7.  It is apparent that on the day of the event that caused him to lose his career and his family, the applicant did not display the traits that he was most known for by his character references.

8.  After reviewing the evidence, the applicant’s achievements, and the character reference letters, these were determined not to be sufficiently mitigating to cause an upgrade of the type of discharge he received primarily due to the violence of the charges for which he was convicted.  Accordingly, the type of discharge directed was appropriate considering all of the available facts of the case.

9.  The applicant responded in the affirmative for the distribution of Copy 6 of the DD Form 214 to the California Director of Veterans Affairs.  Distribution was not made without his consent.  The applicant signed the DD Form 214 and thus approved the distribution of Copy 6 to the California Director of Veterans Affairs.  There was no error in the distribution of Copy 6 of the applicant's DD Form 214; therefore, he is not entitled to a correction of the completed action.  If the applicant wants the Director of Veterans Affairs for Alaska to have a copy of his DD Form 214, he should now provide it to that agency himself.

10.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his under other than honorable conditions discharge to either a general, under honorable conditions discharge or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_  __x__  __x__  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.




_____x_______
          CHAIRPERSON