RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070006852 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright 

Chairperson

Ms. LaVerne Douglas

Member

Mr. Michael J. Flynn

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, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded in order to receive service-connected compensation.

2.  The applicant states, in effect, that his accuser kept changing his account of the incident and the accuser was intoxicated.  He adds that he was only guilty of being in the area.

3.  The applicant provides no additional documentation in support of his request.

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 record shows he enlisted in the United States Army Reserve (USAR) on 10 May 1979.  He was ordered to initial active duty for training (IADT) on the same day and was released from IADT on 8 July 1979.  He was awarded the military occupational specialty (MOS) of 13B, Cannon Crewman.  He enlisted in the Regular Army on 9 July 1979.  He was advanced to pay grade E-2 on 9 October 1979.

3. On 25 January 1980, the applicant was punished under Article 15, UCMJ (Uniform Code of Military Justice), for failing to go to his appointed place of duty on four occasions.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, and 14 days of restriction and extra duty. 





4.  Charges were preferred against the applicant on 23 January 1980, for stealing, by a means of force and violence, foreign currency in the amount of 
20 DM, a finger nail clipper, and a 9 Millimeter (MM) bullet, and for committing an assault upon another person, by hitting him in his face and kicking him with his feet.  

5.  On 23 January 1980, he consulted with counsel and voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge characterized as UOTHC were issued.  He waived his rights and elected not to submit a statement in his own behalf. 

6.  On 13 February 1980, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge characterized as UOTHC and that he be reduced to the lowest enlisted grade.  

7.  The applicant was discharged in the rank/pay grade, Private/E-1, on 7 March 1980.  He had a total of 10 months of net active service.

8.  On 25 May 1982, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.



11.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  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.  There is no indication that the request was made under coercion or duress.  

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant’s allegations that he was guilty of only being in the area where another person was robbed and assaulted were considered; however, he provided no evidence, and there is none, to support these allegations.

4.  The applicant's records show that charges were preferred against him for stealing from and committing an assault upon another person.  The evidence shows that he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence.

5.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

6.  The applicant requested, in effect, that his UOTHC discharge be upgrade in order for him to receive service-connected compensation.  The applicant is advised that the Board does not change the character of service nor does it upgrade discharges for the purpose of enabling former service members to qualify to receive service-connected compensation.  





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KLW_  __MJF___  _LD_____  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.




_____Kenneth L. Wright ______
          CHAIRPERSON




INDEX

CASE ID
AR20070006852
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071106
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800307
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.