BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090019866 


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 he be reinstated for the purpose of retirement and granted an honorable discharge.

2.  The applicant states he was going through a divorce and became alcohol dependent.  He also states that he made a terrible mistake after 22 years of impeccable service.  He continues to state he was new to the command and did not receive assistance.  He requested to speak with the commanding general and he was denied.  He further states, in effect, that he believes he was not given a fair chance and heard the command was going to make an example of him.  Therefore, he resigned.

3.  The applicant provides a copy of his officer evaluation report for the period 1 February 1992 through 31 January 1993 in support of this 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 record shows that he enlisted in the Regular Army on 25 January 1971 and served until he was honorably discharged on 30 December 1981 for the purpose of accepting an appointment as a warrant officer.

3.  On 31 December 1981, the applicant was appointed as a warrant officer one.

4.  The applicant's available record contains a DA message, Commander U.S. Total Army Personnel Command, dated 201210ZOCT93, subject:  Resignation for the Good of the Service, stating the resignation for the good of the service pertaining to the applicant was approved in accordance with Army Regulation 635-120 (Officer Resignations and Discharges), chapter 5, and that he would receive an under other than honorable conditions discharge.

5.  The specific facts and circumstances surrounding the applicant's active duty discharge processing are not available for review.  The evidence does include a properly-constituted DD Form 214 that contains the authority and reason for the applicant's active duty discharge.  

6.  The applicant's DD Form 214 shows he was discharged on 30 November 1993 under the provisions of chapter 5 of Army Regulation 635-120 in lieu of trial by court-martial.  He had completed 22 years, 10 months, and 6 days of active service that was characterized as under other than honorable conditions.

7.  The applicant submitted a copy of an officer evaluation report for the period 1 February 1992 through 31 January 1993 which showed the was assigned to Headquarters and Headquarters Battery, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, performing duties as an installation food manager and was rated as above center of mass.

8.  Army Regulation 635-120, in effect at the time, implemented the statutory provisions of Title 10, U.S. Code, governing officer resignations and discharges and provided policies and procedures for separating officers from active duty.  Chapter 5 provided that an officer could submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in paragraph 5-11a(7) (misconduct or moral or professional dereliction) of Army Regulation 635-100 (Personnel Separations - Officer Personnel), prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provided that a resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances of the applicant's resignation were not available for review.  There is no evidence nor did the applicant submit any evidence that he attempted to notify his chain of command or sought professional help for his marital and alcohol-related issues.

2.  The rating period for the officer evaluation report submitted by the applicant ended prior to his resignation for the good of the service.  While the report is complimentary of the applicant's duty performance, it is not sufficiently mitigating in the absence of more details surrounding the basis for the applicant's resignation to warrant the requested relief.

3.  Although the applicant's separation action is not available, the applicant would have voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  In the absence of evidence to the contrary, regularity is presumed and the applicant has provided no evidence indicating his administrative separation was not accomplished in compliance with applicable regulatory guidance or that there were procedural errors that would have jeopardized his rights.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090019866



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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