IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080004106 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, that he is requesting an upgrade of his discharge based on his post service conduct, which includes actions in Iraq for which he was commended.  He states that he believes the record is unjust because he was coerced to resign his commission with the understanding that the community commander would recommend an HD in lieu of court-martial proceedings.  He claims to have agreed to this arrangement and was later told just prior to his separation that he was receiving a GD.  He states that his counsel informed him the community commander decided that he should be made an example of and requested a GD.  

3.  The applicant further states that after his discharge, he was told the community commander was found guilty of adultery with his secretary and was allowed to retired honorably.  He states that in more than 10 years of service in the Army National Guard (ARNG) and in the active Army, he had no other blemishes on his record.  He further states that since his discharge, he has been a model citizen and wants to serve his country.  He claims that he is requesting his discharge be upgraded in order to apply for a State Department position in Iraq or Afghanistan.  He concludes by indicating that he believes that he was discharged based on an isolated incident and has had a perfect record since his discharge.  He claims that he feels like he has paid his dues for his actions that day and would like the opportunity to serve his country to the best of his abilities by aiding in the reconstruction efforts in Iraq.  
4.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Letter of Appreciation, dated 3 November 2006; and Congressional Record Commendation, dated 14 November 2006; 

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 record shows after having served in the ARNG in an enlisted status from 7 December 1978 through 3 September 1979, he was appointed a second lieutenant (2LT) in the United States Army Reserve (USAR) on 23 May 1981, and on 27 September 1982, he was ordered to active duty and assigned to Fort Polk, Louisiana.  

3.  On 27 March 1984, he was promoted to first lieutenant (1LT) and on 
1 September 1986, he was promoted to captain (CPT).  His record shows that during his active duty tenure, he earned the Meritorious Service Medal, Army Achievement Medal, and the Army Service Ribbon.  

4.  On 28 December 1987, the applicant was investigated for exposing himself in downtown Heilbronn, Germany.  A statement on file confirms that the applicant admitted to a military investigator that he had exposed himself in downtown Heilbronn on the day in question and on two other occasions, and that he had also exposed himself 4 to 6 times while driving on the autobahn [German highway].  

5.  On 26 January 1988, the battalion commander initiated action to eliminate the applicant from service under the provisions of Paragraph 5-12, Army Regulation 635-100, by reason of moral and professional misconduct.  The battalion commander cited the applicant's exposing himself in downtown Heilbronn, Germany, as the basis for taking the action.  


6.  On 23 March 1988, the commanding general (CG) of VII Corps, notified the applicant that he approved the recommendation for elimination for further processing.  He informed the applicant that he could tender his resignation or apply for retirement in lieu of elimination, if otherwise eligible.  He also advised the applicant that the least favorable discharge he could recommend was under other than honorable conditions (UOTHC), and that the final decision would be made by Department of the Army (DA).  

7.  On 31 March 1988, the applicant acknowledged the notification of the VII Corps commanding general, and indicated that he did not wish to make a statement or submit a rebuttal.  He further indicated that he elected to tender his resignation in lieu of elimination from the Army.  

8.  On 12 May 1988, the CG, VII Corps, recommended approval of the applicant's request for resignation in lieu of elimination and recommended the applicant receive a GD, which was warranted by the applicant's misconduct.  On 16 June 1988, a United States Total Army Personnel Command message to the CG, VII Corps, indicated that the applicant's resignation in lieu of elimination had been approved.  It further indicated that the applicant would be returned to the Continental United States (CONUS) for separation, and that he would receive a GD.  On 8 July 1988, the applicant was discharged accordingly.  

9.  The separation document (DD Form 214) issued to the applicant shows he completed a total of 5 years, 9 months, and 12 days during the period of active duty covered by the separation document.  It also shows he was separated under the provisions of chapter 4, Army Regulation 635-120, by reason of moral or professional dereliction.  

10.  The applicant provides a letter of appreciation from the commanding general of the Combined Arms Center; a Multi-National Security Transition Command; Iraq letter to a Member of Congress; and a Congressional Record commendation that all recognize his demonstrated valor in Iraq, while serving as a civilian contractor.  

11.  Army Regulation 635-120 (Officer Resignations and Discharges) provided the procedures for officer resignations or discharges.  Chapter 4 provided the procedures for resignation in lieu of elimination.  It stated, in pertinent part, that an officer who had been recommended for elimination from service by a general court-martial convening authority could tender a resignation in lieu of elimination action.  Members separated under this provision of the regulation could receive either an HD or GD.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because it was based on an isolated incident and based on his post service conduct was carefully considered.  However, these factors are not sufficiently mitigating to support an upgrade of his discharge at this late date. 

2.  The evidence of record confirms the applicant requested resignation in lieu of an elimination action that could have resulted in his receiving an UOTHC discharge.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 

3.  The applicant's unbecoming conduct, which he admitted to an investigator had occurred on multiple previous occasions prior to the date he was caught, clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  He voluntarily requested resignation to avoid an elimination action that could have resulted in his receiving an UOTHC discharge, and although his actions in Iraq as a civilian contractor in 2004, were commendable, given the nature of the actions that led to his resignation, this factor alone does not provide a basis for an upgrade of his discharge to an HD.

4.  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.

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004106



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ABCMR Record of Proceedings (cont)                                         AR20080004106



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