IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080011953 


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 under other than honorable conditions discharge be upgraded to a general discharge and to change his reentry eligibility (RE) code of RE-4 to a better reenlistment code. 

2.  The applicant states, in effect, he had requested a Presidential pardon before his hearing because he was innocent of all charges.  The five board members of the hearing on 13 September 2004 violated his military court rights.  He was denied a commission in the Air Force due to the board members' failure to exonerate him from “all false charges.”  He has already submitted evidence and over 40 reasons to the Army Discharge Review Board as to why he should have been exonerated and to have his record purged of all false Article 15s and “fake or false” court-martial charges.

3.  The applicant provides a letter from his state representative and a personal statement that addresses why he believes his discharge should be upgraded.  In his statement he blames five board members for denying him the opportunity to attend the Air Force Reserve Officer Training Corps (AFROTC).  His statement lists four dates he claims to be remembered in American history as the “DAYS OF INFAMY.”  In addition, he listed 26 violations that he claims are charges against the board members.  He then describes his rank structure and his religious affiliation as an American Muslim that was spied upon by Osama Bin Laden because he was introduced into the Orthodox Sunni community in Tennessee.


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 personnel record shows he enlisted in the Regular Army on 8 June 1999.  He completed the necessary training and was awarded the military occupational specialty (MOS) 92A (Automated Logistical Specialist).  

3.  On 15 December 2000, the applicant received developmental counseling for disobeying a lawful order and disrespecting a noncommissioned officer.

4.  On 13 April 2001, five charges were preferred against the applicant:

     a.  Charge I, for three specifications for attempting to assault or offer to do bodily harm to two senior noncommissioned officers and a command sergeant major; 

     b.  Charge II, for four specifications for being disrespectful towards four superior commissioned officers; 

     c.  Charge III, for one specification for striking a superior commissioned officer; two specifications for willfully disobeying a lawful order from two superior commissioned officers; one specification for offering violence against a superior commissioned officer; and one specification for disobeying a lawful order from a superior commissioned officer; 

     d.  Charge IV, for six specifications for willfully disobeying a lawful order and being disrespectful in deportment and language towards five superior noncommissioned officers and a command sergeant major; and

     e.  Charge V, for two specifications for wrongfully and willfully impersonating a commissioned officer.

5.  The applicant was evaluated by a sanity review board and was found not to have any severe mental disease, he was able to distinguished right from wrong, and he had sufficient mental capacity to understand the nature of the proceedings against him.

6.  On 14 May 2001, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  The applicant made the request of his own free will and was not subjected to any coercion by any one.  Moreover, he stated that under no circumstances does he desire further rehabilitation, for he had no desire to perform further military service.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

8.  On 15 May 2001, the chain of command forwarded his recommendation for separation to the approving authority.

9.  On 22 May 2001, the approving authority approved the applicant's request and directed the applicant be discharged from the U.S. Army for the good of the service in lieu of trial by court-martial and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  Upon discharge the applicant was reduced to the lowest enlisted grade, E-1.

10.  On 15 June 2001, the applicant was discharged.  He had completed a total of 2 years and 8 days of Net Active Service This Period.

11.  Army Regulation 635-5-1 (Separation Program Designated (SPD) Codes), Table2-3, states that the SPD code of KFS denote discharge for the good of the service in lieu of court-martial.

12.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of KFS is assigned an RE code of RE-4.

13.  The applicant applied to the Army Discharge Review Board (ADRB) on 
8 January 2004.  On 13 September 2004, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied the upgrade for a change in character of service and the reason for his discharge.

14.  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.

15.  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 that his under other than honorable conditions discharge should be upgraded to a general discharge and that his RE-4 be change to a better reenlistment code.

2.  The applicant voluntarily requested discharge for the good of the service in lieu of a trial by a court-martial.  In that request he acknowledged he was guilty of the charges against him.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

4.  The applicant’s characterization of service and his narrative reason for separation are appropriate based on the facts in the case.

5.  The applicant’s statement was considered; however, it is not sufficient to grant relief to upgrade his discharge or to change his RE code.

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 that requirement.  Therefore, he is not entitled to correction of his records to upgrade his discharge to a general discharge or to change his RE Code.

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)                                         AR20080011953



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011953



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1