IN THE CASE OF:	  

	BOARD DATE:	  12 June 2008

	DOCKET NUMBER:  AR20080005201 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states that during his second term he was dealing with a mental illness that now has him disabled.  He loved the military, but he was dealing with a mental illness that started during his first term.

3.  The applicant provides two letters of support from his sisters, both dated        7 February 2008.

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 initially enlisted in the Regular Army on 4 September 1975 and was honorably released from active duty on 1 September 1978.

3.  The applicant again enlisted in the Regular Army on 19 January 1979 in the rank and grade of Specialist Four, E-4.

4.  On 11 June 1979, court-martial charges were preferred against the applicant charging him with disobeying a lawful order from his superior noncommissioned officer (NCO) to assign one man to a work detail; with unlawfully striking another superior NCO by punching him in the face; and for wrongfully using provoking words and gestures towards that second superior NCO by saying, “I could kill you,” or words to that effect, and by placing his fist in the NCO’s face.

5.  On 22 June 1979, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.

6.  On his “Personal Statement in Support of Request for Discharge for the Good of the Service,” the applicant stated he committed the offense(s) because he was in charge at the time and he was looking out for his people.  He guessed he went about it the wrong way.  He had things on his mind.  He thought the Army would be the same as his first term, but problems at home and some problems of his own made him change his mind.  His first three years in the Army were great, but things had changed at home and he felt he was needed at home.

7.  On 17 July 1979, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

8.  On 2 August 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 6 months and 17 days of creditable active service during his second enlistment and a total of 3 years, 6 months, and 15 days of creditable active service with no time lost.

9.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

10.  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.  

11.  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 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.  It is recognized that the applicant had no record of misconduct in his records other than the incidents that resulted in his discharge.  However, neither is there any evidence of record, and he provided no such evidence, to show he was suffering from any mental illness or that such mental illness was the cause of his misconduct.  

3.  In the absence of evidence confirming he had a mental illness that was the cause of his misconduct, and considering the seriousness of the offenses for which he was charged (particularly the assault charge), it appears that the characterization of the applicant’s discharge as UOTHC was and still is appropriate.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ____xx__  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.



	________xxxxx__________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005201



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ABCMR Record of Proceedings (cont)                                         AR20080005201



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