IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110003969 


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 other than honorable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, Special Orders Number 259 AR, dated 6 September 2005, show he was honorably discharged.  He would like to get his records corrected so that he can be considered for a chaplain's position.

3.  The applicant provides a copy of Special Orders Number 259 AR, dated 6 September 2005, and a Department of Veterans Affairs (VA) summary of benefits, dated 9 February 2011.

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, and 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 served in the Missouri Army National Guard.  He was assigned to Company B, 110th Engineer Battalion, as a first lieutenant.  His primary specialty was 21B (combat engineer).

3.  The applicant was charged with violating a lawful regulation by wrongful association and fraternization with a sergeant during the period 1 June 2003 through 23 November 2003.

4.  On 23 November 2003, the applicant was charged with willfully damaging property by kicking the glass at a military bus stop causing monetary damages in the amount of less than $500.00.

5.  The applicant was charged with wrongfully using cocaine during the period 19 October 2003 through 19 November 2003.

6.  On 3 March 2004, the applicant voluntarily submitted his resignation in lieu of trial by general court-martial under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-13.

7.  The applicant was advised of his rights and understood that if his resignation were accepted he could receive any type of discharge the Department of the Army deemed appropriate.

8.  On 11 March 2004, the Commander, U.S. Army Field Artillery Center, Fort Sill, OK, recommended disapproval of the applicant's resignation in lieu of trial by general court-martial.

9.  An ad hoc review board met between 11 March 2004 and 18 April 2004 to determine whether or not to accept the applicant's resignation.

10.  The applicant received a referred officer evaluation report for the period 15 May 2003 through 18 March 2004.  The evaluation report noted the following:

* uses rank/position for self-benefit
* tested positive for cocaine
* married female E-5 from his platoon
* pattern of dishonesty
* lack of respect toward duties and superiors
* absent without leave (AWOL)
* absenteeism resulted in disenrollment from Captains Career Course
* not recommended for promotion
* recommended for discharge

11.  On 18 April 2004, the Deputy Assistant Secretary (Army Review Boards) accepted the applicant's resignation and approved the review board's recommendation by directing that the applicant be discharged with a characterization of service under conditions other than honorable.

12.  The applicant's records contain Missouri Army National Guard separation Orders 181-096 which show he was separated under other than honorable conditions effective 26 April 2004.

13.  The applicant's records contain a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows he was separated from the Missouri Army National Guard under other than honorable conditions effective 26 April 2004.

14.  The applicant's records contain NGB Special Orders Number 259 AR, dated 6 September 2005, which show the applicant's Federal recognition was withdrawn effective 26 April 2005 due to his honorable discharge.

15.  The applicant's records contain NGB Orders 249-, dated 6 September 2005, which show he was honorably discharged from the Army National Guard of the United States effective 26 April 2004.

16.  The applicant provides a letter of summary of benefits from the VA stating he had three periods of honorable service; however, part of the dates have been blocked out.  The dates read as follows:

* Army, Honorable, 9 June 198X – 
* Army, Honorable, 17 November 199X – 
* Army, Honorable, 30 May 200X – 

17.  On 8 March 2007, the President of the Army Discharge Review Board informed him that the board reviewed his case and determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

18.  Army Regulation 635-120 (Officer Separations and Transfers), superseded by Army Regulation 600-8-24, implemented the statutory provisions of Title 10, U.S. Code, governing active duty officer resignations and discharges.  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, when the officer was under suspended sentence of dismissal, or when the officer elected to tender a resignation because of reasons outlined in Army Regulation 635-100 (Officer Personnel Separations), 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.  This regulation provided that a resignation for the good of the service, when approved by Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

19.  Army Regulation 600-8-24 states an officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer:

	a.  submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct;

	b.  is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate;

	c.  is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence; or

	d.  is discharged 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, unless a discharge under other than honorable conditions is appropriate.

20.  Army Regulation 600-8-24 states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.  When the separation is based solely on pre-service activities or substandard performance of duty for reasons that do not involve acts of misconduct, it will be honorable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to upgrade his discharge under other than honorable conditions to an honorable discharge was carefully considered and it was determined that there is insufficient evidence to grant the relief.

2.  The applicant, a commissioned officer, was charged with wrongful association and fraternization with a sergeant in his platoon, willfully damaging property by kicking the glass at a military bus stop, and using cocaine.  His evaluation report also shows he had periods of AWOL.

3.  The applicant voluntarily submitted his resignation in lieu of trial by general court-martial.

4.  The applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.

5.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Further, the applicant's discharge accurately reflects his overall record of service.  Therefore, he is not entitled to an upgrade of his discharge.

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 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)                                         AR20110003969



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ABCMR Record of Proceedings (cont)                                         AR20110003969



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