RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 April 2004                   
	DOCKET NUMBER:   AR2003089808

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial be set aside.  He also requests that his discharge under other than honorable conditions be changed to honorable, that his reenlistment code be changed to RE-1, and that he receive all back pay and allowances.

2.  The applicant states that prior to his discharge he was advised by his chain of command that if he agreed to be discharged he would receive an honorable discharge and would be discharged in the rank of E-5.  He contends that he agreed under those circumstances and decided not to challenge his discharge.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  In a lengthy brief, counsel states, in effect, that the applicant did not request a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, that he did not sign his DD Form 214 (Certificate of Release or Discharge from Active Duty), and that the medical examination option election form was not prepared or signed by the applicant.  He also contends that the applicant did not receive counsel as required by regulation and that the discharge did not comply with governing regulations.  Counsel states that without a record there can be no presumption as to the regularity of the action and any reliance upon the incomplete records for a "presumption of regularity" is legal error.

2.  Counsel provides a brief and seven attachments which are addressed in the brief.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
27 October 1997.  The application submitted in this case is dated 11 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 6 December 1984 for a period of 4 years.  He completed One Station Unit Training in military occupational specialty 95B 
(military police).  On 14 March 1988, the applicant reenlisted for a period of 
4 years.  He was promoted to sergeant on 1 August 1988.

4.  On 11 April 1989, while serving as a correctional officer at the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, charges were preferred against the applicant for failing to obey a lawful order (fraternizing with the wife of an inmate), adultery, and signing a false official statement. 

5.  The available records do not contain the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.   

6.  The separation authority's action, a fourth endorsement, dated 10 May 1989, states, in pertinent part, "The request for discharge for the good of the service, under the provisions of Chapter 10, AR [Army Regulation], submitted by Sergeant [applicant's last name], [applicant's Social Security Number], Company A, United States Disciplinary Barracks Military Police Battalion, Fort Leavenworth, Kansas, is approved.  An Other Than Honorable discharge will be issued."

7.  On 16 May 1989, a Standard Form 93 (Report of Medical History) was prepared from medical information provided by the applicant.  The applicant provided his printed name and executed his signature on this medical record. 

8.  On 16 May 1989, the applicant elected not to undergo a separation medical examination.  This option statement contains the applicant's printed name which appears similar to the printed name on the Standard Form 93 provided by the applicant.

9.  The applicant was discharged under other than honorable conditions on 
16 May 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 4 years,    5 months and 11 days of total active service.

10.  Item 21 (Signature of Member Being Separated) on the applicant's DD Form 214 was endorsed on 16 May 1989.  The applicant's signature appears in item 21.  It appears to be the same signature as appears on other documents in his records.      

11.  Item 27 (Reenlistment Code) on the applicant's DD Form 214 shows the entry, "RE-4." 
  
12.  The applicant's service personnel records contain a letter, dated December 1989, wherein he wrote to the President of the United States.  This letter, in pertinent part, states, "My own Lawyer, who was a military lawyer" and "I couldn't afford a civilian lawyer so I had to trust my military lawyer."  His records also contain an undated letter to the President of the United States which states, in pertinent part, that "I don’t think poor moral judgment should be hung over my head forever."  

13.  On 17 November 1993, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge to honorable.  The applicant's DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 25 January 1991, states, in pertinent part, "I took a chapter 10," "I did lie about that," and "That is part of the reason that I submitted the chapter 10."  

14.  On 27 October 1997, the ADRB again denied the applicant's request to upgrade his discharge to honorable.  The applicant's DD Form 293, dated 
18 May 1996, states, in pertinent part, "I realize my signature is on those documents."

15.  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.  The regulation also states that a report of medical examination, if requested, will accompany the request for discharge.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, 

policies, and procedures for enlistment processing into the Regular Army and the U. S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

18.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.   

19.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

20.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, states, in pertinent part, that an enlisted member being processed for separation under the provisions of chapter 10, Army Regulation 635-200 may request a medical examination in writing. 

21.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.   

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's contention that the applicant did not request a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  Although it is noted that the available records do not contain the applicant's voluntary request for discharge, by the applicant's own admission in his 1991 application to the ADRB he stated that he "submitted the chapter 10."  He also admitted in his 1996 application to the ADRB that "I realize my signature is on those documents."  In addition, the available records contain the separation authority's action approving the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.       
2.  There is no evidence of record, and neither the applicant nor counsel has provided evidence, which shows that the applicant did not sign his DD Form 214.      

3.  The evidence of record does not support counsel's contention that the medical examination option election form was not prepared or signed by the applicant.  It is noted that the available medical examination for separation election of option statement is dated 16 May 1989, after the separation authority approved his request for discharge.  However, there is no evidence to show an option statement was not submitted with the discharge packet.  In any case, it appears if an error had been made in not offering the applicant the opportunity to take a separation physical earlier it was a harmless error (and not proof the applicant did not request the discharge) since the applicant has made no medical claims.    
4.  The evidence of record does not support counsel's contention that the applicant did not receive counsel as required by regulation.  The applicant wrote to the President of the United States and reported that he had a military lawyer.  

5.  There is no evidence of record, and the applicant and counsel have provided no evidence, that the discharge did not comply with governing regulations.

6.  In the absence of evidence to the contrary and considering the applicant's prior statements, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons for separation appear to be appropriate.  

7.  The applicant was a military police sergeant, serving in a leadership position, charged with three serious offenses (fraternizing with an inmate's wife, committing adultery, and making a false official statement).  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or entitlement to any back pay and allowances.

8.  The RE code used in the applicant’s case is correct and was applied in accordance with the applicable regulations.    

9.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 27 October 1997.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 26 October 2000.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling 

explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

FNE___  WTM____  JTM_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		__Fred N. Eichorn________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089808	
SUFFIX		
RECON		
DATE BOARDED	20040401	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19890516	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.	100.0300	
3.	128.1400	
4.		
5.		
6.