IN THE CASE OF:	  

		BOARD DATE:	  28 July 2008

		DOCKET NUMBER:  AR20080005747 


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, reconsideration of his earlier petition for an upgrade of his under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states, in effect, that he is a combat veteran of the Gulf War and that he is presently suffering from what he is convinced are Gulf War related medical conditions.  

3.  The applicant provides a Social Security Administration Letter, dated 4 March 2008, and a Valley Rescue Mission Letter, dated 5 March 2008, in support of his reconsideration request.  

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070007006, on 2 October 2007.  

3.  During its original review of the case, the Board concluded the applicant's discharge was administratively correct and in conformance with applicable regulations, and that the characterization of his service was commensurate with his overall record of service.  It finally concluded that the applicant had failed to submit evidence of an error or injustice related to his discharge.  

4.  The applicant submits a letter from the Social Security Administration, dated 
4 March 2008, as new evidence.  This letter indicates that the applicant met the medical requirements for disability benefits.  It further indicated that the onset of the applicant's disability was established as 13 January 2006.  He also provides a letter from an administrative assistant at the Valley Rescue Mission, Columbus, Georgia, dated 5 March 2008, which indicates the applicant is homeless and stayed at the shelter from 1 March through 5 March 2008, and would be allowed to stay a maximum of 90 days, after which he will not be allowed to return until one year has passed.  

5.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 10 May 1990, and was trained in and awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  

6.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was promoted to private first class (PFC) on 1 October 1990, and that this is the highest rank he attained while serving on active duty.  His record shows he served in Southwest Asia from 1 September 1990 through 29 March 1991, and that during his active duty tenure, he earned the Army Service Ribbon, SWA Service Medal with 2 bronze service stars, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

7.  The applicant's record contains a memorandum, dated 7 May 1991, which placed the applicant in pre-trial confinement, effective 3 May 1991.  It indicates the reason for taking this action was to prevent further serious misconduct on the part of the applicant which would pose a threat to himself and others.  It further indicated the applicant had broken restriction on at least two occasions and totally disregarded all attempts to curb his drinking.  It further indicates the applicant's actions continue to increase in intensity and violence, and had become an infection to the unit.  
8.  The applicant's Official Military Personnel File (OMPF) contains Duty Status actions that confirm the applicant's status was changed from Present for Duty (PDY) to confined military authorities on 3 May 1991, and that it was changed from pretrial confinement to PDY on 6 June 1991.  

9.  The applicant's OMPF is void of any documents or medical treatment records indicating that he was suffering from or being treated for any disabling condition at the time of his discharge.  

10.  A separation packet containing the facts and circumstances surrounding the applicant's discharge processing are not on file in the OMPF.  The record does contain a separation document (DD Form 214), which identifies the authority and reason for his discharge.  

11.  The DD Form 214 on file confirms that on 13 June 1991, the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service -in lieu of trial by court-martial, and that he received an UOTHC discharge.  The separation document also shows that the applicant completed a total of 1 year and 2 days of creditable active military service, and that he accrued 34 days of time lost due to military confinement.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge.  

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 trial by court-martial. An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he is a combat veteran and suffers from medical conditions that are Gulf War related was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant's OMPF is void of any medical treatment records or any other document indicating that he was suffering from or being treated for a medically disabling condition that would have warranted his separation processing through medical channels at the time of his discharge.   Further, the Social Security Administration letter now provided as new evidence by the applicant confirms only that he was determined to be disabled due to conditions that onset on 
13 January 2006, almost 15 years subsequent to his discharge.  Although his current homeless situation is unfortunate, this factor alone is not a basis to upgrade his discharge.  

3.  The applicant's record does not include a separation packet that contains the specific facts and circumstances surrounding his final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed.  

4.  The applicant's separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by 
court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge. In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

5.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.  His overall record of service was not sufficiently meritorious to support the issue of a GD or HD at the time, nor does it support an upgrade now.  


6.  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 or that would support amendment of the original Board decision in this case.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20070007006, dated 2 October 2007.  




      _______ _  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)                                         AR20080005747



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ABCMR Record of Proceedings (cont)                                         AR20080005747



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