IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080006222 


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, in effect, that his discharge be upgraded and that his rank be restored.

2.  The applicant states, in effect, that he got into a fist fight with an officer and was placed in the stockade.  He was told that he could go home if he requested a discharge under Army Regulation 635-200, Chapter 10.  He requested either a general (GD) or undesirable discharge (UD) and received the UD.  He was reduced to pay grade E-1 without having had a hearing or being court-martialed. He has recently been diagnosed by the Department of Veterans Affairs (VA) with a number of medical conditions, including post traumatic stress disorder (PTSD), sleep apnea, heart disease, stroke, and depression. 

3.  The applicant provides copies of his DD Form 214 (Report of Transfer or Discharge) and a VA Progress Note.

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 entered active duty on 26 July 1967, completed training, and was awarded the military occupational specialty (MOS) 51M (Firefighter).  On 15 September 1969, he reenlisted while serving in Alaska.

3.  On 24 December 1969, a special court-martial found the applicant guilty of two charges, the destruction of government property and theft of government property.  The charge of theft of government property included three specifications.  The approved sentence consisted of 15 days in confinement.

4.  He served in Vietnam from 9 August 1970 through 24 June 1971 with the Headquarters and Headquarters Company, 11th Combat Arms Group.

5.  On 25 April 1971, the applicant was involved in an altercation with a commissioned officer that led to court-martial charges for assault of a commissioned officer and disobeying a direct order from a commissioned officer.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that if the request was accepted that he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge (UD) Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.

7.  The discharge authority approved the applicant's request and directed that he be discharged under other than honorable conditions.  The discharge authority also directed that, in accordance with Army Regulation 635-200, paragraph 1-13, that the applicant be reduced to the lowest enlisted grade.

8.  The applicant was discharged on 24 June 1971 in pay grade E-1.  His DD Form 214 shows that he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a UD.  He had 3 years, 10 months, and 6 days of creditable service with 15 days of lost time.  His authorized awards are listed as the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

9.  On 24 August 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his characterization of service and reason for separation.  At the time of this review, the applicant contended he had a drug problem that started in Vietnam.  He also contended that he did not hit the officer until after that officer grabbed him as he was walking away. 

10.  The applicant requested a personal appearance before the ADRB; however, he failed to respond to the scheduling letters and his case was administratively closed.

11.  The applicant's service medical records are believed to be on indefinite loan to the VA and are not available for review.  The VA Progress Note, dated 7 March 2008, is page 23 of a document of indeterminate length.  It lists 21 conditions for which the applicant is being treated, included in the list of conditions are PTSD and drug abuse.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  In pertinent part, as then in effect, it stated that:

	a.  when a Soldier was to be discharged under other than honorable conditions, the separation authority was to direct an immediate reduction to the lowest enlisted grade per Army Regulation 600-8-19 (Enlisted Promotions And Reductions), Chapter 7;

	b.  a general discharge was a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; 

	c.  an undesirable discharge was issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  It specifically addressed issuance of an UD for discharges issued under the provisions of Chapter 10 of this regulation; and 

	d.  under Chapter 10, a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.  

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 90 assaulting and/or willfully disobeying superior commissioned officer.  The maximum penalty for assaulting a commissioned officer in a time of war is death or life imprisonment.

DISCUSSION AND CONCLUSIONS:

1.  The VA medical document is incomplete and records medical conditions too far removed from his period of service to be of probative value.

2.  There are no medical records available to show the applicant was treated for drug abuse or that he was suffering from a medical condition that contributed to his misconduct.  

3.  The applicant not only assaulted a commissioned officer in the execution of his duties, but he also disobeyed a direct order.  These infractions occurred in a combat zone which adds to their severity and had he gone to trial by court-martial he could have received punishment far in excess of the UD he received.  

4.  The applicant's reduction in grade at the time of his separation was proper and in accordance regulations.

5.  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.

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
      
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)                                         AR20080006222



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ABCMR Record of Proceedings (cont)                                         AR20080006222



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