RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 March 2008
	DOCKET NUMBER:  AR20070016913 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Ms. Yolando Maldonado

Member

Mr. Edward E. Montgomery

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 undesirable discharge, characterized as under other than honorable conditions, be upgraded to a general or an honorable discharge.  

2.  The applicant states, in effect, he was not involved in the riots or assaults on 28 March 1970.  He was at a social activity off-post at the time.  When he returned from the social activity he went to bed and the next morning after being awakened for a muster formation, he found out a number of personnel were being charged with assault and he was one of them because a witness identified him by mistake.  He states he first learned of the incident when charges were preferred against him and he spent 69 days in the stockade before being sent to Fort Dix, New Jersey for his discharge.  He felt that he was misinformed and he did not received any legal counsel, competent defense, or other assistance to help him understand what was transpiring.  He did not realize he had an undesirable discharge, characterized as under other than honorable conditions, until he applied for Department of Veterans Affairs (VA) benefits.

3.  The applicant does not provide any additional documentation.

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 military personnel record shows he was inducted in the Army of the United States on 7 April 1969.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Infantryman).

3.  On 27 October 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a commissioned officer.
4.  On 7 April 1970, charges were preferred against the applicant for striking his superior commissioned officer in his face with a fist; participating in a breach of the peace by unlawfully assembling with 30 men for the purpose of assaulting, harassing, and intimidating bystanders and passers-by; and assaulting an enlisted Soldier by hitting and kicking him with a means likely to produce grievous bodily harm with his fist and foot.

5.  Several sworn statements were made that identified the applicant as being a part of the assault against his superior commissioned officer and being involved with a group of men who participated in the assault on 28 March 1970.

6.  On 19 May 1970, 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 undesirable 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, under the provision of Army Regulation 635-200 (Personnel Separation), chapter 10, 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Undesirable Discharge.  

8.  On 22 May 1970, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 27 May 1970, the approving authority approved the applicant's request and directed the applicant be furnished an Undesirable Discharge Certificate.

9.  On 8 June 1970, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 1 year, 2 months, and 2 days of Net Service This Period.

10.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 (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.

12.  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 his undesirable discharge should be upgraded to a general or an honorable discharge.

2.  The evidence shows that the applicant was involved in an assault against his superior commissioned officer by striking him in the face with his fist; participating in a breach of the peace by unlawfully assembling with 30 men for the purpose of assaulting, harassing, and intimidating bystanders and passers-by; and also, for assaulting an enlisted Soldier by hitting and kicking him with a means likely to produce grievous bodily harm with his fist and foot.

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.  His record of misconduct renders his service unsatisfactory.

4.  The applicant's statement that he was at a social activity off-post at the time of the incident; he felt that he was misinformed and he did not received any legal counsel, any competent defense, or other assistance in understanding what was transpiring; and he did not realized he had an undesirable discharge, under other than honorable conditions is noted.  

5.  However, the applicant has not submitted any evidence to support his claim and his record shows he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He 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 undesirable discharge, and of the procedures and rights that were available to him. 

6.  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; therefore, he is not entitled to an honorable or a general discharge.  Therefore, he is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__YM___  __SLP___  __EEM__  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.




_____Shirley L. Powell____
          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.