IN THE CASE OF: BOARD DATE: 8 January 2015 DOCKET NUMBER: AR20140008437 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 an upgrade of his discharge under other than honorable conditions.. 2. The applicant states: * the characterization of his discharge is the result of an assault on another Soldier * he understands the altercation is not acceptable conduct, but he believes the type of discharge to be extremely harsh and unfair * Soldiers with transgressions such as drug abuse were given general discharges under honorable conditions * until the time of the incident he was an excellent Soldier, conducted himself in a professional manner, and was eligible for promotion * he does not believe this one incident should be reflective of his entire military career 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). 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 enlisted in the Regular Army on 29 May 1974. His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman). 3. On 12 November 1974 while still in basic combat training, the applicant was arraigned and tried by special court-martial. He was found guilty of: * choking another Soldier * biting another Soldier * communicating a threat to his drill sergeant 4. A memorandum from the Mental Hygiene Consultation Service, Raymond W. Bliss Army Hospital, dated 5 December 1975, certified the applicant had no mental illness. 5. On 30 December 1975, charges were preferred against him for the following offenses committed on 1 December 1975 at a post exchange food services shop: * assaulting another Soldier with a chair * striking a civilian in the mouth with his fist * willfully destroying property 6. A DA Form 3822 (Report of Mental Status Evaluation), dated 6 January 1976, shows the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 7. On 8 April 1976, he consulted with 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 a discharge under other than honorable conditions, and the procedures and rights available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 8. In his request, he indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected to submit statements in his behalf. a. The statement from his company commander, Captain C____, dated 10 February 1976, stated the applicant presented the appearance of a very solid Soldier. His conduct during duty hours was uniformly good. He was apparently conscientious and relatively hard working. The incidents the applicant was involved in over the few months since Captain C____ took command were all while the applicant was under the influence of alcohol after duty hours. The applicant was as good of a Soldier as most and better than many. b. The second statement, dated 20 April 1976, provided by Sergeant C____, stated he never saw the applicant get into trouble with anyone. The applicant was always courteous and presented himself as an average Soldier while his personal appearance was above average. 9. On 27 April 1976, the separation authority approved his request for discharge and directed his reduction to private/E-1 and his discharge under other than honorable conditions. 10. On 5 May 1976, he was discharged accordingly under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His DD Form 214 shows he completed 1 year, 5 months, and 29 days of total creditable active military service. 11. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his discharge to general under honorable conditions was carefully considered; however, the evidence is insufficient to support his request. 2. His records show he was found guilty of the destruction of property and several different instances of assault in the span of less than 1 year. He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial that may have resulted in a felony conviction. 3. 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, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an upgraded 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 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) AR20140008437 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140008437 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1