IN THE CASE OF:	  

	BOARD DATE:	  22 JULY 2008

	DOCKET NUMBER:  AR20080007642 


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 be upgraded to an honorable or a general discharge.

2.  The applicant states that he entered into the service when he was 19 years old and that he was young and ready for the world.  He states that in 1980 when Iran had hostages he was ready for war.  He states that he was not a trouble maker and that he did not get into trouble.  He states that when he went to Korea, he was a Soldier and that he is still a Soldier.  He states that based on the time that he spent in the service and that rank that he reached, he should be entitled to medical benefits.  He states that since the injuries that he received were incurred while he was on active duty, he is requesting an upgrade of his discharge so he can apply for the medical treatment that he needs very badly.  He states that he is a family man with five children and a skin disorder which is spreading all over his body.  He states that the incident that occurred in September 1981 was the result of a sergeant being attacked by a private, which was not his fault.  He states that he stopped the assault; however, he chose not to testify and was issued a "chapter 10" discharge.  He states that he now realizes the mistake that he made and that he wishes that he was still in the Army.  He states that he can not change his past; however, he can better his future.  He concludes by stating that he is requesting an upgrade of his discharge so that he can receive the medical treatment that he was receiving while he was on active duty.

3.  The applicant provides in support of his application an Application for the Review of Discharge or Dismissal from the Army Forced of the United States (DD Form 293); a copy of a Marriage Record (Florida) and License to Marry; a copy of a Medication Administration Record; a letter from the Hospice of Palm Beach County, Inc.; a copy of a Social Security Administration Physician's/Medical Officer's Statement of Patient's Capability to Manage Benefits; a copy of his Advance Notification of Representative Payment; a copy of his Social Security Card; and a copy of his wife's Social Security Cards.

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.  On 11 July 1979, the applicant enlisted in the Regular Army in Miami, Florida, for 3 years, in the pay grade of E-2.  He successfully completed his training as a combat engineer. 

3.  He was promoted to the pay grade of E-3 on 1 April 1980 and he was promoted to the pay grade of E-4 on 1 July 1981.  He was transferred to Korea on 28 July 1981.

4.  On 7 October 1981, charges were preferred against the applicant for committing an assault upon another Soldier by striking him in the face and head with a Mattock Handle, thereby intentionally inflicting grievous bodily harm upon him, to wit:  a broken jaw and severe lacerations to the face and head.

5.  The facts and circumstances pertaining to the applicant's discharge are not present in the available record.  The Certificate of Release or Discharge from Active Duty, that he was furnished at the time of his discharge indicates that he was discharged on 16 December 1981, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 5 months and 6 days of net active service. 

6.  On 25 March 1985 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

7.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Based on the available information, the type of discharge directed and the reasons therefore were appropriate.

2.  The applicant's contentions and supporting documentation have been noted.  However, the fact that he has a desire for better medical treatments is not a basis for granting relief in his case.

3.  The evidence of record shows that he had charges pending against him for committing an assault upon another Soldier by striking him in the face and head with a Mattock Handle and considering the nature of his offense, it does not appear that his discharge under other than honorable conditions is too severe.

4.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080007642



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007642



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1