IN THE CASE OF:	  

		BOARD DATE:	  	  24 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012964


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states that the judge advocate counsel failed to properly or thoroughly investigate the circumstances of the proposed court-martial, thereby missing evidence contained in the court records, evidence that supported the service member's [applicant's] version of the supposed absent without leave (AWOL) designation.  He also states that counsel failed to notify [him] adequately by his lack of investigation and knowledge of the case and thereby deprived [him] of fair and impartial counsel, and thereby violated [his] constitutionally-guaranteed right to due process and competent counsel.  The applicant continues to state that the board gave [him] a 30-day extension on his original filing because counsel with the American Legion in Washington, DC, failed to accurately file any points of contention for the board to find on.  He also states that [he] has been in prison for 14 1/2 years since then and did not receive the 30-day notice in time to answer.  [He] has only now found adequate counsel on the issue to represent [him] in an appeal.

3.  The applicant provides a hand-written, self-authored personal letter to his inmate advocate, Alberto Angel Avalos Detachment correspondence addressed to the Army Review Boards Agency, and Army Review Boards Agency Support Division correspondence in support of his application.


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 service records show that he enlisted in the Regular Army on 17 October 1989.  He completed basic training and advanced individual training and was awarded the military occupational specialty 12C (Bridge Crewmember).

3.  On 19 June 1990, the applicant received a letter of reprimand from his commander for failure to maintain sufficient funds in his checking account resulting in dishonored checks.

4.  On 31 August 1990, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed against the applicant for failure to pay a debt obligation with the intent to deceive and for the payment of a past due obligation which was late in violation of Article 123A.  The applicant received punishment in the form of 14 days extra duty and 14 days restriction to post.

5.  On 30 April 1991, the applicant received a letter of reprimand from his commander for his belligerent and disrespectful actions toward a senior noncommissioned officer in his chain of command.

6.  On 19 July 1991, the applicant's commander imposed a bar to reenlistment against him under the provisions of Army Regulation 601-280 (Army Retention Program) for continued bad checks.  This action informed him that he was being barred for showing no demonstrated potential for further service and that that separation procedures under the provisions of chapter 14 (Separation for Misconduct) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) would be initiated.

7.  On 3 October 1991, the applicant was charged with unauthorized absence from his unit on or about 3 October 1991 and remaining absent until he was apprehended on or about 18 December 1991.

8.  On 26 December 1991, the applicant requested voluntary discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge in Lieu of Trial by Court Martial) of Army 
Regulation 635-200.  He indicated in his request that he understood that he may be discharged under other than honorable conditions.  He also indicated that he understood the possible effects of an under other than honorable conditions discharge and that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He further indicated that he consulted with counsel and was fully advised in this matter.

9.  On 8 January 1992, the separation authority approved the applicant’s request for discharge for the good of the service under the provisions of Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 27 January 1992 shows that he was discharged from active duty under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10 of Army Regulation 635-200.  His DD Form 214 shows that he served a total of 1 year, 7 months, and 1 day of creditable active military service during this period and had 193 days of lost time due to unauthorized AWOL and confinement during the periods 1 July 1991 through 2 October 1991, 3 October 1991 through 16 December 1991, 17 December 1991 through 20 December 1991, and 8 January 1992 through 27 January 1992.  The highest rank he achieved was private first class/pay grade E-3.  He was reduced to the rank of private/pay grade E-1 prior to his discharge.  The applicant authenticated this form by placing his signature in item 21 (Signature of Member Being Separated).

11.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that he was awarded the Army Commendation Medal, National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, Marksman Marksmanship Qualification Badge with Rifle Bar, Southwest Asia Service Medal with 2 bronze service stars, Army Commendation Medal, Kuwait Liberation Medal (Saudi Arabia), and Kuwait Liberation Medal (Kuwait).

12.  The applicant's records do not show any significant acts of valor during his military service.

13.  On 6 September 1995, the ABCMR notified the applicant that his application for upgrade of his discharge under other than honorable conditions to general under honorable conditions would not be processed until he exhausted all other available administrative remedies.  The ABCMR informed him of his eligibility to apply to the Army Discharge Review Board (ADRB) for relief and advised him that his military records would be retained by the ABCMR for 45 days pending application to the ADRB.  He was further informed that failure to respond within 45 days would result in return of his military records to the records holding agency without action.

14.  On 27 March 1998, the ADRB determined that the applicant was properly and equitably discharged and denied his petition to upgrade his discharge.

15.  On 16 May 2008, the Army Review Boards Agency Support Division notified the applicant that his application for review of his discharge by the ADRB could not be processed because the statutory period for appeals prohibits the ADRB from processing applications received after 15 years from the date of discharge or release from active duty.  The Army Review Boards Agency Support Division informed him that he could appeal his discharge to the ABCMR under the provisions of Title 10, U.S. Code, Section 1552.

16.  The applicant's hand-written, self-authored personal letter to his inmate advocate, dated 3 June 2008, states that the date that he filed his initial request for review is not certain, but it is already a matter of record with the court.  He continues to state that the appeals court notified him of a 30-day extension to re-file the last page of his appeal with some points of contention, but that he did not receive the notice for almost 6 months.  He essentially states that he has been waiting for someone like the inmate advocate to appear in front of the review board requesting an extension of the 30 days citing extreme circumstances and to obtain a copy of his initial filing addressing the most outstanding points of contention cited in accordance with UCMJ codes.  The applicant also states that he would be most interested in signing the remainder of his State sentence over to the military.

17.  Alberto Angel Avalos Detachment, Marine Corps League, correspondence, dated 4 July 2008, from the applicant's inmate advocate states, in essence, that the incarcerated veterans in the Texas Department of Criminal Justice understand where they took the wrong turn in their lives, but that they are human beings, and he would be grateful to the Board for all and any compassion and kindness that the Board may give his fellow veteran.

18.  Army Regulation 635-200, chapter 10, provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A request for discharge under the provisions of chapter 10 stipulates that the individual is aware that as a result of the issuance of a discharge under conditions other than honorable that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment; however, a discharge under other than honorable conditions is normally considered appropriate.

19.  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 (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.

20.  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’s request for an upgrade of his discharge under other than honorable conditions was carefully considered and determined to be without merit.

2.  The applicant's military service records show that he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant’s history of indiscipline involving multiple incidents of unauthorized AWOL, indebtedness, and disrespectful actions toward a senior noncommissioned officer in his command clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his overall service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  In view of the foregoing evidence, there is no basis for granting the applicant's request.

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)                                         AR20080012964



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ABCMR Record of Proceedings (cont)                                         AR20080012964



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