RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070008639 


	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. Loretta D. Gulley

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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 that his Under Other Than Honorable Conditions (UOTHC) discharge be upgraded. 

2.  The applicant states, in effect, that at the time of his discharge, he had been approved for a medical separation for flat feet.  He also states in effect, that he was harassed for hitting a drill sergeant after he attacked him while he was asleep on duty.  He also states that the circumstance which led to his discharge UOTHC would not have been tolerated in today’s Army.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement in support of this application. 

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 16 May 1979, for a period of three years.  He did not complete the required training and therefore, he remained in military occupational specialty 09B (Basic Trainee).  The highest rank he attained while serving on active duty was Private (E-2).

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.

4.  On 6 September 1979, the applicant accepted nonjudicial punishment (NJP) for failing to go to his prescribed place of duty.  His imposed punishment was a reduction to the grade of Private (E-1), a forfeiture of $97.00 pay, 7 days extra duty, and 7 days restriction.

5.  On 1 October 1979, charges were preferred against the applicant for being disrespectful to a commissioned officer, by striking a commissioned officer, for striking a noncommissioned officer, for disobeying a lawful order, for destruction of government property, for breaking restriction, and for threatening a noncommissioned officer on 6 September 1979.

6.  On 16 October 1979, 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 UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 submitted a separate statement on his behalf requesting discharge for the good of the service in accordance with Army Regulation 635-200, because he felt that he could no longer function in the military.  He felt that his value to the Army had been damaged by the court-martial charges rendering it impossible for him to become an asset to the Army.  The applicant also declined a separation physical examination.  

8.  The applicant’s military medical record contains a DA Form 3082 (Statement of Medical Condition), dated 19 October 1979 that shows the applicant underwent a medical examination and no illnesses or injuries are noted.

9.  On 19 October 1979 a Mental Status Evaluation and a physical examination cleared the applicant for separation.

10.  The applicant’s military record contains several Standard Forms 93, (Report of Medical History).  The latest, dated 19 October 1979, shows that he had no significant medical problems while on active duty and Item 11 (Have you ever had or have you now ) the applicant indicated “NO” to “Foot trouble.”  

11.  On 9 November 1979, the separation authority directed that the applicant be separated under the provisions of paragraph 10, Army Regulation 635-200, for the good of the Army and that he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 20 November 1979, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 6 months and 5 day of creditable active military service.

12.  On 29 October 1982, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

13.  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.

14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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’s contention that he was originally approved for a medical discharge was carefully considered and found to be without merit.  There is no evidence in the applicant’s military record nor has there been any evidence provided to support the allegations. 
2.  The evidence of record shows that the applicant accepted discharge in lieu of trial by court-martial.

3.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JTM__  ___JRM _  ___SWF_  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 T. Meixell_____
          CHAIRPERSON

INDEX

CASE ID
AR20070008639
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/29
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19791120
DISCHARGE AUTHORITY
AR 635-200, Chapter 10. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.