IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100013653 


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 his undesirable discharge under other than honorable conditions be upgraded to an honorable discharge.  He also requests the narrative reason for his separation be changed from "Conduct triable by court-martial" to "Suffering from psychological personality disorders."

2.  He states, in effect:

* his commander ordered him to undergo a mental evaluation
* a flight surgeon recommended his indefinite disqualification from flight duties due to a psychological mental disorder
* his mental disorder was the catalyst for the conduct which led to him being considered for possible trial by court-martial
* he should have been properly diagnosed and treated prior to being forced to resign or face court-martial
* he feared that seeking mental health counseling would have resulted in suspension of his flying status
* his prior periods of honorable enlisted service and the awards he received are true indications of his overall character of service
* not changing his characterization of service would be an unfair, unjust, and inaccurate representation of his over character of service
* following several arrests for misdemeanor criminal violations, he was convicted of a Federal felony and sentenced to 14 years imprisonment
* as a condition of his supervised release, he was required to undergo psychological counseling
* he was diagnosed with a compulsive and obsessive emotional disorder due to past traumatic experiences and current stressful environment
* he feels this was exasperated while he was serving on active duty by his fear of losing flying status
* since his discharge he has attained an Associate's Degree and certification as a Master in Shaoling Kung Fu

3.  He provides copies of:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 215 (Correction to DD Form 214)
* an NGB Form 22 (National Guard Bureau Report of Separation and Record of Service)
* a DD Form 256A (Honorable Discharge Certificate), dated 5 June 1985
* two DA Forms 4980-18 (Army Achievement Medal Certificate)
* an ITT Technical Institute certificate for award of an Associate of Science Degree
* an American Chinese Kung Fu Federation certificate for achieving the status of Master Si-Gung

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 he completed the following honorable periods of service as an enlisted Soldier:

* 10 June 1977 - 7 July 1980 in the Regular Army (RA)
* 4 March 1981 - 17 January 1983 in the Puerto Rico Army National Guard
* 17 April 1984 - 5 June 1985 in the RA

3.  Upon completion of training to become a rotary wing aircraft pilot, he was appointed as a warrant officer one in the U.S. Army Reserve with concurrent call to active duty on 6 June 1985.  He was promoted to chief warrant officer two on 6 June 1987.

4.  A DD Form 458 (Charge Sheet), dated 3 July 1989, shows he was charged with four specifications of violating Article 134 of the Uniform Code for Military Justice (UCMJ) and his chain of command recommended he appear before a general court-martial.  The specifications were as follows:

* 19 November 1988, taking indecent liberties with a female under 16 years of age, not his wife, by exposing his penis to her and masturbating
* 16 January 1989, taking indecent liberties with two females under 16 years of age, neither his wife, by exposing his penis to them and masturbating
* 9 April 1989, willfully and wrongfully exposing his penis in an indecent manner to public view in the Center Library on Fort Rucker, AL
* 2 May 1989, willfully and wrongfully exposing his penis in an indecent manner to public view while at an open kitchen door

5.  On 7 July 1989, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he voluntarily tendered his resignation from the Army for the good of the service under the provisions of chapter 5 of Army Regulation 635-120 (Officer Resignations and Discharges).  In his resignation, he stated he did not desire to appear before a court-martial or board of officers.  He indicated he understood that his resignation, if accepted, could be considered as being under other than honorable conditions.  He acknowledged he understood that if his resignation were approved, 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  His company, battalion, brigade, and division commander recommended disapproval of his request for resignation in lieu of appearing before a general court-martial.




7.  On 14 August 1989, the separation authority accepted his resignation and directed issuance of an under other than honorable conditions discharge.
   
8.  On 29 September 1989, he was discharged under the provisions of chapter 5, Army Regulation 635-120.  His DD Form 214 shows the following pertinent information:

* Item 24 (Character of Service) shows his service was characterized as "Under Other than Honorable Conditions"
* Item 26 (Separation Code) shows his separation program designator code as "DFS"
* Item 28 Narrative Reason for Separation) contains the entry "Conduct triable by court-martial."

9.  On 3 October 1989, he submitted an appeal to the Army Discharge Review Board (ADRB) requesting a reevaluation of his service and an upgrade of his discharge.

10.  On 30 August 1991, the Chief of the ADRB Section of the U.S. Army Personnel Center located in St. Louis, MO informed him that the board reviewed his case and determined he was properly and equitably discharged and that his request for a change in the character and/or reason of his discharge was denied.

11.  His record is void of any evidence and he has not provided any evidence showing he was diagnosed with any physical or psychological illness at the time of his separation.

12.  Army Regulation 635-120 implemented the statutory provisions of Title 10,
U. S. Code, governing active duty officer resignations and discharges.  Chapter 5 of this regulation 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 Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) 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.




13.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
1–22c, provides that a discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable. A discharge certificate will not be issued.  An officer will normally receive an "Under Other Than Honorable Conditions" when they:

* Resign for the good of the service
* Are dropped from the rolls of the Army
* Are involuntarily separated due to misconduct, moral or professional dereliction
* Are involuntarily separated for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed 
* Are discharged following conviction by civilian authorities

14.  Army Regulation 600-8-24, paragraph 1–22b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to an officer 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 officer's separation specifically allows such characterization.

15.  Army Regulation 635-5-1 (SPD Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  It also provides the specific authorities (regulatory or directive) and reasons for separating officers from active duty and the SPD codes to be entered on the DD Form 214.  It shows that for officers who are discharged under the provisions of Army Regulation 635-120, chapter 5, for resignation in lieu of trial by court-martial, the SPD code is DFS.

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it states:

	a.  the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, military personnel records jacket, or any other document authorized for filing in the official military personnel file;

	b.  the character of service would be entered in item 24;

	c.  the separation authority would be entered in item 25;

	d.  the separation code would be entered in item 26; and

	e.  the narrative reason for separation would be entered in item 28.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge under other than honorable conditions should be upgraded to an honorable discharge and the narrative reason for his separation should be changed from "Conduct triable by court-martial" to "Suffering from psychological personality disorders" was carefully considered and determined to be without merit.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily tendered his resignation under the provisions of chapter 5 of Army Regulation 635-120 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge.

5.  His narrative reason for separation and corresponding SPD code were assigned based on the fact that he voluntarily tendered his resignation in lieu of appearing before a court-martial.  Absent the conduct triable by court-martial, there was no fundamental reason to process the applicant's voluntary request for separation.  The underlying reason for his discharge was his pending court-martial appearance.  The only valid narrative reason for separation permitted under that paragraph is "Conduct triable by court-martial" and the corresponding SPD code is "DFS." 

6.  There is no evidence in this records and he did not provide substantiating evidence that shows he was diagnosed with any physical or psychological illness at the time of his separation or that he requested help for such conditions from his chain of command or solicited help from the support channels available at his installation.   He acknowledged that he was afraid to seek mental health counseling.  If he would seek help it would have been difficult for the Army to "properly diagnose" and treat him for any condition.

7.  Records confirm he applicant was separated under the provisions of Army Regulation 635-120, chapter 5.  In addition, the governing Army regulations confirm that the entries in both item 24 and item 28 of his DD Form 214 are valid and appropriate entries based on his approved separation.

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)                                         AR20100013653





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ABCMR Record of Proceedings (cont)                                         AR20100013653



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