RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060013079 


	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.



	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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that he was involuntarily placed into the Fire Department working as a fireman because he spoke German.  He claims his supervisor allowed him to drink and do drugs with the civilians in the fire department.  He further claims that when he refused to bow down to perform fire department duties for which he was never trained discharge plans went into the planning stages.  He also states that when he refused to commit criminal acts, as they wanted, his superiors began mistreating him and generated Article 15 actions against him.  He further states that his UOTHC discharge was unduly assigned and he now requests that his discharge be upgraded.

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 22 March 1979.  The application submitted in this case is dated 
10 August 2006.

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 limitations 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’s record shows he enlisted into the Regular Army and entered active duty on 23 June 1976.  He was trained in, awarded, and served in military occupational specialty (MOS) 63B (Power Generator and Wheel Vehicle Mechanic), and the highest rank he attained while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement or service warranting special recognition.  


4.  On 31 January 1978, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful general regulation by indirectly purchasing 8 cartons of cigarettes, which was a rationed item; and wrongfully soliciting this rationed item. His punishment for these offenses was a verbal reprimand and a forfeiture of $250.00 for two months (suspended).

5.  On 10 February 1978, the applicant accepted NJP for violating a lawful general regulation by operating a motor vehicle without a valid driver's license; and for being absent from his place of duty.  His punishment for these offenses was a reduction to private/E-2 (PV2), which was suspended, and 14 days extra duty.  

6.  On 10 October 1978, the applicant accepted NJP for being derelict in the performance of his duties; for being disrespectful in language to a superior noncommissioned officer (NCO); and for failure to go to his appointed place of duty at the time prescribed.  His punishment for these offenses was a reduction to PV2, a forfeiture of $113.00, and 14 days extra duty.  

7.  On 16 November 1978, a Charge Sheet (DD Form 458) was prepared preferring court-martial charges against the applicant for violating Articles 86, 92, and 134 of the Uniform Code of Military Justice (UCMJ).  Charge I was one specification of failure to go to his appointed place of duty at the prescribed time. Charge II was for failure to obey a lawful general regulation by wrongfully operating a privately owned motor vehicle without possession of a valid license, wrongfully having in his possession more than one ration card at a time, and wrongfully having in his possession more than the authorized amount of rationed items.  Charge III was for being the driver of a vehicle involved in an accident and wrongfully and unlawfully leaving the scene, and wrongfully having in his possession 130 grams more or less of marihuana in the hashish form.  

8.  On 20 December 1978, a Charge Sheet (DD Form 458) was prepared preferring four additional court-martial charges against the applicant.  Charge I was for disobeying a lawful order.  Charge II was for damaging Government property.  Charge III was for setting fire to a pizza box, the property of another Soldier; and setting fire to two jeep sides, the property of the United States Military.  Charge IV was for wrongfully trying to influence the testimony of another Soldier by threatening to kill anyone who ratted on him; communicating to another Soldier a threat to kill his superior officers and NCOs; by being disorderly during the playing of the national anthem; for breaking restriction; and communicating a threat to kill his NCOs.  
9.  On 18 December 1998, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the 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.  In his request, he acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all Veterans Administration (VA) benefits, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge.  

10.  On 3 January 1979, the applicant's request for Discharge for the Good of the Service, under the provisions of Chapter 10, Army Regulation 635-200, was denied.

11.  On 16 March 1979, after conferring with detailed military defense counsel and with the concurrence of the requested military requested defense counsel, the applicant requested reconsideration of his request for discharge for the good of the service.  

12.  On 16 March 1979, the separation authority approved the applicant’s reconsideration request for discharge and directed that he receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 22 March 1979, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that at the time, he had completed a total of 2 years and 9 months of creditable active military service.

13.  There is no evidence showing that the applicant applied to the 
Army Discharge Review Board for an upgrade to his discharge within its 15-year statute of limitations.  

14.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An UOTHC discharge is normally considered appropriate; however, the separation authority may grant a general, under honorable conditions discharge (GD) or honorable discharge (HD) if it is determined to be warranted based on the member's overall record of service.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his superiors mistreated him because he wouldn't perform fire department duties and commit criminal acts was carefully considered.  However, there is insufficient evidence to support his claim.

2.  By regulation, an UOTHC discharge is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  

3.  In this case, the applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  Therefore, his overall record of service did not support a GD or HD at the time of his discharge, and it does not support an upgrade of his discharge at this late date.   

4.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge 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.  It also shows he was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UOTHC, which is consistent with regulatory policy.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 March 1979.  Therefore, the time for him to file a request for correction of any error or injustice expired on 21 March 1982. He failed to 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x __x __  _x  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.




_____x___
          CHAIRPERSON




INDEX

CASE ID
AR20060013079
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/08
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1979/03/22
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.