IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090009807 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he would like his discharge upgraded so he can be entitled to compensation for a disability.  Years after separating from the military he learned that he was awarded disability but was unable to receive it due to his discharge.  He also states, that in January or February of 1992, he was involved in a consensual sexual encounter between himself, two other officers, and an enlisted Soldier.  In May or June of 1992, a video recording of the event surfaced and shortly thereafter an investigation was launched.  Upon completion of the investigation, each officer was charged with sodomy and conduct unbecoming an officer, whereas the enlisted Soldier was not charged at all.  He does understand that his choice may not have been accepted by others; however, it was consensual.   

3.  The applicant provides no additional documentation in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provided no additional documentation in support of the applicant’s 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.  The applicant's military records show that he was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, effective 13 May 1983.  On 17 November 1983, he was ordered to active duty on 26 January 1984.  He was promoted to captain effective 1 January 1988.

3.  On 13 May 1992, a DA Form 268 (Report to Suspend Favorable Personnel Actions) was initiated against the applicant for adverse action.

4.  On 9 September 1992, the Deputy Assistant Secretary, Office of the Assistant Secretary, approved the recommendation of the Department of the Army Ad Hoc Review Board’s acceptance of the applicant’s tendered request for resignation for the good of the service and directed the issuance of an under other than honorable conditions discharge.

5.  On 16 September 1992, the applicant was notified his request for resignation had been approved with the issuance of an under other than honorable conditions discharge, notwithstanding the Commanding General’s recommendation for the issuance of an honorable discharge.  The applicant acknowledged the notification on the same day.

6.  The applicant was discharged, in the rank of captain, on 30 September 1992, under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 5, for conduct triable by court-martial.  His service was characterized as under other than honorable conditions.

7.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-120, in effect at the time, prescribed the procedures whereby an officer on active duty could tender his/her resignation or be discharged.  Chapter 5 of the regulation specified that an officer could submit a resignation for the good of the service prior to general court-martial charges being preferred against him/her and prior to being recommended for elimination.  A resignation for the good of the service, when approved by Headquarters, Department of the Army (HQDA), was normally accepted as being under other than honorable conditions, in which case the officer would be furnished an Under Other Than Honorable Conditions Discharge Certificate.  If the resignation was accepted by HQDA under honorable conditions, the officer would be furnished a General Discharge Certificate.

9.  Army Regulation 635-120, paragraph 5-7, also specified that regardless of the type of discharge certificate furnished, when an officer whose resignation for the good of the service was accepted, that officer was barred from all the rights under laws administered by the Department of Veterans Affairs based on the period of service from which separated.

10.  Army Regulation 635-100 (Personnel Separations – Officer Personnel), in effect at the time, provided the authority for the separation of officers from active duty.  Paragraph 1-5 specified that the character of discharge would be predicated on the officer’s behavior and performance of duty while a member of a military service.  Characterization normally would be based on a pattern of behavior and duty performance rather than an isolated incident.  There were circumstances; however, in which conduct reflected by a single incident could provide the basis for characterization.  An officer would normally be furnished an honorable discharge unless conditions existed or as directed by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant's contentions have been considered; however, they do not support his request.  The evidence shows that on 13 May 1992 a flagging action was initiated against the applicant for adverse action.  On an unspecified date, the applicant submitted a request for resignation for the good of the service.  His request was approved and HQDA directed the issuance of an under other than 
honorable conditions discharge.  In accordance with pertinent regulations, HQDA was the approval authority for the issuance of an under other than honorable conditions discharge.

3.  The applicant’s contention that he would like his discharge upgrade so he can receive compensation for a disability he was awarded has also been noted.  However, under the provision of Army Regulation 635-120, regardless of the type of discharge certificate he was furnished, when an officer resigns for the good of the service, he is ineligible/barred from all the rights under laws administered by the Department of Veterans Affairs.

4.  The applicant nor counsel have provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant's separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090009807



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ABCMR Record of Proceedings (cont)                                         AR20090009807



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