RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  
	DOCKET NUMBER:  AR20080001097 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, upgrade of his under other than honorable conditions discharge to an honorable discharge. 

2.  The applicant states, in effect, at the time of his discharge he was a young Soldier and took a plea out of fear.  He also states he has proven himself as a prominent citizen of society since his discharge from the Army and would like to be remembered as an honorable Soldier.

3.  The applicant provides no additional documentary evidence in support of his 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's military service records show that he enlisted in the U.S. Army Reserve on 20 December 1976 and entered active duty in the Regular Army for a period of 3 years on 14 July 1977.  The applicant’s records show his date of birth is 17 October 1958 and at the time of his entry on active duty the applicant was 18 years of age.  Upon completion of basic combat training and advanced individual training, he was awarded MOS 72E (Telecommunications Center Specialist).

3.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 6 January 1980.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 1330 hours, 10 November 1979, unlawfully striking a fellow Soldier on the face and body with his fist.  The punishment imposed was reduction to private first class (suspended until 29 July 1980), extra duty for 7 days, and restriction to the barracks for 7 days.  This document also shows the suspension of punishment of reduction to private first class (imposed on 30 January 1980) was vacated by the company commander on 19 February 1980.

4.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 6 December 1979, that shows Second Lieutenant Lawrence M. S____, assigned to Company A, 141st Signal Battalion (Germany), preferred charges against the applicant, in that the applicant did, on or about 0100 hours, 30 November 1979, at number ## Endress Strasse, Ansbach, Germany, a place outside the territorial limits of the United States, rape a female German National.

5.  On 12 February 1980, the applicant requested a discharge for the good of the Service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he acknowledged guilt to the offenses charged; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf, which would accompany his request for discharge; however, the applicant elected not to submit statements in his own behalf.

7.  On 20 February 1980, the captain serving as Commander, Company A,
141st Signal Battalion (Germany), recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions of chapter 10 of Army Regulation 635-200, with an other than honorable conditions discharge.

8.  On 20 February 1980, the lieutenant colonel serving as Commander,
141st Signal Battalion (Germany), recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions of chapter 10 of Army Regulation 635-200, with an under other than honorable conditions discharge.  The colonel serving as Commander, 1st Brigade, 1st Armored Division (Germany), also recommended approval of the applicant’s request for discharge pursuant to chapter 10 of Army Regulation 635-200 and issuance of an under other than honorable conditions discharge.

9.  The applicant’s military service records contain a DA Form 3822-R (Report of Mental Status Evaluation), dated 22 February 1980.  This document shows, in pertinent part, the applicant was fully alert and oriented; his mood was level, his thinking process clear, his thought content normal, and his memory good.  This document also shows that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in Board proceedings.

10.  On 22 February 1980, the major general serving as Commander,
1st Armored Division (Germany), approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service with an under other than honorable conditions discharge.  The commander also directed the immediate reduction of the applicant to the lowest enlisted grade.

11.  The applicant's military service records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 10 March 1980, under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service and issued Separation Code “JFS.”  This document also shows that at the time of his discharge the applicant had completed 2 years,
7 months, and 27 days net active service.

12.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

13.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 27 May 1985, that shows the applicant requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 28 January 1986, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable.  The applicant was notified of the ADRB’s decision on 29 January 1986.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  An under other than honorable discharge normally is appropriate for a member who is discharged for the good of the Service.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JFS” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation
635-200, Chapter 10, based on conduct triable by court-martial.

16.  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.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his under other than honorable conditions discharge should be upgraded to an honorable discharge because he was a young Soldier at the time, he took a plea out of fear, and has since proven himself as a prominent citizen of society since his discharge from the Army and would like to be remembered as an honorable Soldier.

2.  The evidence of record shows that the applicant was charged with committing an offense punishable by court-martial, that he was afforded legal counsel and advised of the rights available to him, that the applicant voluntarily acknowledged guilt to the offense charged, and submitted his request for discharge for the good of the Service.  The evidence of record also shows that the applicant underwent a mental evaluation at the time of his discharge processing and the medical doctor determined the applicant was mentally responsible, fully alert and oriented, and his mood was level.  There is no evidence of record, and the applicant provides insufficient documentary evidence to support his claim that he “took a plea because of fear.”  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who also served in the U.S. Army during this period of time and successfully completed their military service commitment.  Therefore, there is insufficient evidence to support the applicant’s contentions.

3.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows that the applicant received punishment under Article 15, UCMJ, for unlawfully striking a fellow Soldier with his fist.  The evidence of record also shows the applicant was charged with committing an offense, the punishment for which included a bad conduct or dishonorable discharge, and that the applicant voluntarily acknowledged guilt to the offense charged.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality 
of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  The applicant contends that since his discharge he has been a prominent citizen in society.  However, he provides no substantive documentary evidence in support of his claim regarding his post-service contributions to society. Nonetheless, the applicant’s claim of being a prominent citizen in society is noted; however, post-service contributions to society alone do not warrant upgrade of his discharge.

6.  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.

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


ABCMR Record of Proceedings (cont)                                         AR20080001097



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508