IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080006963 


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 that his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant states in a four-page statement, in effect, that his problems stemmed from being assigned to a platoon sergeant who verbally and physically abused him.  He goes on to state that he requested a transfer to another platoon when his unit deployed to the Gulf War and he had no problems as a field Soldier.  However, when he returned back to the United States he was transferred back to his old platoon and the problems started all over again.  He goes on to state that he was depressed, detached and estranged from everyone, to include his wife.  He also states that he experienced outbursts of anger daily and within 5 months of returning from the Gulf, his marriage ended.  He continues by stating that on 15 September 1991, he became drunk in his room and people came into his room and assaulted him.  He went into a blind rage and became combative and was subsequently taken to the hospital.  He was returned to his room with a guard on the door and at some point military policeman appeared at his room and paraded him out of the barracks in handcuffs and leg irons in front of the entire company.  He further states that the charges against him were never investigated by his defense counsel and contends that she did not present an adequate defense of his position.

3.  The applicant provides a copy of a memorandum from an infantry first lieutenant for whom the applicant worked for from December 1989 to August 1990, a Vet Center Intake evaluation and a copy of his DD Form 214. 

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 21 June 1989 for a period of 4 years under the infantry/airborne enlistment option.  He completed his         one-station unit training (OSUT) and airborne training at Fort Benning, Georgia and was transferred to Fort Campbell, Kentucky on 17 November 1989 for assignment to Company A, 2nd Battalion, 187th Infantry Regiment, for duty as a light weapons infantryman.  He was advanced to the pay grade of E-3 on 21 June 1990.

3.  He deployed to Saudi-Arabia with his unit in support of Operation Desert Shield/Storm from 11 September 1990 to 9 April 1991.  He was married on 18 May 1991.   

4.  Although not filed in the available records, nonjudicial punishment (NJP) was imposed against the applicant on three separate occasions.  He was reduced to the pay grade of E-2 on 7 July 1991 and to the pay grade of E-1 on 27 August 1991. 

5.  On 19 September 1991, charges were preferred against the applicant for being disrespectful in language towards a superior commissioned officer, for being disrespectful in language towards a superior noncommissioned officer, two specifications of assaulting non-commissioned officers, for being drunk and disorderly, for communicating threats to a commissioned officer and five noncommissioned officers to injure or kill them and for breaking restriction.  

6.  On 24 September 1991, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement from his platoon leader in the Gulf War with his request (the same statement he submits with his application).

7.  The appropriate authority approved his request on 25 September 1991 and directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions, on 30 September 1991, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years and 10 months of total active service during his current enlistment. 

9.  There is no indication in the available records to show that he ever applied to the Army Discharge review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11. Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.  Paragraph 3-7 also 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’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he also admitted guilt to the charges against him.    

4.  The applicant's entire record of service was considered, to include his service during the Gulf War; however, the fact that the applicant received NJP on three occasions, which reduced him in rank, and had multiple charges and specifications preferred against him and for which he admitted guilt, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  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

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080006963





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ABCMR Record of Proceedings (cont)                                         AR20080006963



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