IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090015543 


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 upgrade of his under other than honorable conditions discharge to an honorable or a general, under honorable conditions discharge.  He also requests a personal appearance before the Army Board for Correction of Military Records (ABCMR).

2.  The applicant states, in effect, that the statements that were made during the U.S. Army Criminal Investigation Division (CIDC) investigation support his innocence.  He states that he suffered from post traumatic stress disorder (PTSD), depression, and "schizo-affective disorder" while he was in the Army.  He now wishes to go to college so that he can become self-supportive.

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 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.  On 3 August 1982, the applicant enlisted in the Regular Army (RA) in Chicago, IL, for 2 years, in the rank/grade of private (PV1)/E-1.  He successfully completed his training as a heavy anti armor weapons infantryman.

3.  The applicant reenlisted in the RA for 3 years on 18 May 1984 and he reenlisted again on 15 May 1987 for a period of 3 years.  The applicant extended his enlistment for 8 months on 20 October 1987.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 24 August 1989 for wrongfully having sexual intercourse with a woman, not his wife.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, and extra duty.

5.  The facts and circumstances surrounding the applicant's discharge are not contained in his available records.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 21 February 1990, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 7 years, 6 months, and 19 days of total active service.

6.  The available records do not show that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitation.

7.  Army Regulation 635-200 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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  Army Regulation 635-200, paragraph 3-7a, of 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.  

9.  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.

10.  Army Regulation 15-185 provides the Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  Paragraph 2-11 states, in effect, that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable or a general discharge.

2.  His contentions have been noted; however, there is no evidence in the available records, nor has the applicant submitted any evidence to show that he suffered from PTSD, depression and "schizo-affective disorder" while he was in the Army.  

3.  The available records do show that he had NJP imposed against him on 24 August 1989 for wrongfully having sexual intercourse with a woman, not his wife.  His records also show that he submitted a request for discharge for the good of the service in lieu of trial by court-martial and, in accordance with the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  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 this requirement.

5.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record 
and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

6.  In view of the foregoing, 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)                                         AR20090015543



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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