RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 January 2008 DOCKET NUMBER: AR20070012887 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. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Mr. John Infante Chairperson Mr. Eric N. Anderson Member Mr. David K. Haasenritter Member 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 an upgrade of his discharge. 2. The applicant states that he accepted full responsibility for his mistakes and has since made positive changes in his life. He desires a second chance to serve his country in the U.S. Army Reserve (USAR). 3. The applicant provides the following additional documentary evidence in support of his application: a. DD Form 214 (certificate of Release or Discharge from Active Duty), dated 27 September 1989. b. Certificate, dated 5 February 2006, Establishment of a Cathedral Worship Center as a Church. c. Certificate, dated 25 February 2006, Appointment as a Pastor of the Cathedral Worship Center. d. Bishop's Certificate, dated 25 February 2006, Affirmation as a Pastor of the Cathedral Worship Center. 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 records show that he enlisted in the Regular Army on 23 August 1984 for a period of 3 years. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman). The highest rank he attained during his military service was specialist four (SP4)/E-4. His records further show that he reenlisted in the Regular Army on 23 April 1987 for a period of 4 years. 3. The applicant's records also show he was awarded the Army Service Ribbon, the Army Achievement Medal (1st Oak Leaf Cluster), the Expert Marksmanship Qualification with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). The applicant's records do not show any significant acts of valor during his military service. 4. The applicant's records further reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 November 1988 for being disrespectful in language toward a superior noncommissioned officer on or about 9 September 1988; for being disrespectful in acts and language toward a superior noncommissioned officer on or about 18 September 1988; for being disrespectful in language toward another superior noncommissioned officer on or about 18 September 1988; and for willfully disobeying a lawful order on or about 29 September 1988. His punishment consisted of reduction to the grade of private/E-1, forfeiture of $335.00 pay for two months (suspended for 60 days), and 45 days of extra duty. 5. On 18 April 1989, the applicant's immediate commander initiated a bar to reenlistment against the applicant citing his disciplinary problems and letters of indebtedness. On 10 May 1989, the approval authority approved the applicant's bar to reenlistment. 6. On 10 May 1989, Court-Martial charges were preferred against the applicant for one specification of making and uttering a certain check for the purchase of goods and thereafter dishonorably failing to maintain sufficient funds, on or about 12 January 1989; and one specification of making and uttering a certain check for the purchase of goods and thereafter failing to maintain sufficient funds, on or about 25 January 1989. 7. On 24 May 1989, the applicant pled guilty at a Summary Court-Martial to two specifications of making and uttering certain checks for the purchase of goods and thereafter dishonorably failing to maintain sufficient funds, on 12 January 1989 and on 25 January 1989. He was sentenced to hard labor without confinement for 45 days. 8. On 3 August 1989, Court-Martial charges were preferred against the applicant for one specification of wrongfully appropriating a stereo tuner and a stereo amplifier, the property of another Soldier, between 5 July 1989 and 26 July 1989; and one specification of breaking restriction, on or about 4 August 1989. 9. On an unknown date between 3 August 1989 and 14 August 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations). 10. In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. The applicant elected not to submit a statement on his own behalf. 11. On 14 September 1989, the applicant's acting battalion commander recommended approval of the request for discharge and remarked that the applicant's discharge was the most expeditious way to remove a Soldier who continued to display conduct that disrupted the good order and discipline of the unit. 12. On 14 September 1989, the applicant's intermediate commander also recommended approval of the request for discharge. 13. On 15 September 1989, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the grade of private/E-1. The applicant was discharged on 27 September 1989 accordingly. The DD Form 214 he was issued at the time shows that he was discharged under conditions other than honorable in accordance with chapter 10 of Army Regulation 635-200. This form also shows that he completed 5 years, 1 month, and 5 days of creditable military service. 14. The applicant submitted three certificates that show his post-service involvement in a local church and his appointment as a pastor. 15. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 16. Army Regulation 635-200 (Personnel Separations) 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. 17. Army Regulation 635-200, paragraph 3-7a, 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. 18. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he is entitled to an upgrade of his discharge. 2. The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial. The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 3. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either a general or an honorable discharge. 4. The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits. 5. The applicant’s post-service good conduct and involvement in the church have been noted. However, these factors are not sufficiently mitigating to merit the relief requested. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___ji___ __ena___ __dkh___ 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. John Infante ______________________ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON YYYYMMDD DATE BOARDED YYYYMMDD TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.