IN THE CASE OF:
BOARD DATE: 9 JUNE 2009
DOCKET NUMBER: AR20090001491
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 general under honorable conditions discharge be upgraded to honorable.
2. The applicant states that he realized he needed to listen to his commanding officer. His commanding officer accused him of wanting to date enlisted Soldiers and this was not true. He went before Soldiers and asked all the female Soldiers to come in and write a statement on his ability to command. All of the female Soldiers sat in the same room and wrote the same statement about him. He states he did not know what to do so he was given a chance to get out of the military. He regrets the decision to get out and would love to get back into the military and serve another tour in Iraq. He continues to state that his grandfather fought in World War II, his father and uncle served as enlisted Soldiers in the Air Force, and his brother was a major in the Air Force. He would like to finish his career, which he has 8 years active service and 11 years of service towards pay. He contends that his service record was perfect, he served in Iraq, and was a good Soldier. Since he got out, he has been working at the Roadway Express trucking company as an operation manager.
3. The applicant provides no additional documents 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After having prior enlisted active and inactive service, the applicant was appointed as a Reserve commissioned officer on 19 February 2004 with a concurrent call to active duty. He served in Iraq from 8 September 2004 to 10 March 2005.
3. He was promoted to first lieutenant on 19 August 2005.
4. The applicant's discharge packet is not available. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 December 2006 under the provisions of Army Regulation 600-8-24, paragraph 3-13 in lieu of trial by court-martial with the issuance of a general under honorable conditions discharge. He completed 2 years, 9 months and 27 days of active military service.
5. Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph
3-13, provides that an officer may submit a resignation for the good of the service (RFGOS) in lieu of general court-martial when court-martial charges have been preferred against the officer with a view toward trial by general court-martial or when the officer is under a suspended sentence of dismissal. The commander will ensure that RFGOSs are voluntary, that officers are provided the opportunity to consult with legally qualified counsel who is a member of the Judge Advocate Generals Corps or a civilian counsel retained by the officer at his or her own expense, and allowed a reasonable period of time to consider requesting a RFGOS. An officer separated under this paragraph normally receives a characterization of service of under other than honorable conditions.
6. 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's statements have been noted. However, these statements alone are insufficiently mitigating to warrant an upgrade in this case.
2. Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of a general discharge based on the applicants overall record of service and that the separation action was processed in accordance with the governing regulation.
3. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.
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.
_______ _ _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.
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