IN THE CASE OF:    

		BOARD DATE:	4 November 2008  

		DOCKET NUMBER:  AR20080010346 


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

2.  The applicant states, in effect, that his witnesses were not able to speak and his statement was omitted.  He was told to sign the Chapter 10 so that he could go home and that the case would not go his way.  So, he signed to get out.

3.  The applicant provided no additional 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 record shows he enlisted in the US Army Reserve Delayed Entry Program (DEP) on 6 October 1977.  On 24 October 1977, he was discharged from the DEP and enlisted in the Regular Army.  He successfully completed his basic combat training at Fort Jackson, South Carolina.  He attended advanced individual training in pursuit of award of the military occupational specialty (MOS) 68G (Aircraft Structure Repairman); however, he did not complete this training.  The applicant later attended advanced individual training for award of the MOS 05C (Radio Teletype Operator).

3.  The applicant was assigned to Fort Bragg, North Carolina, as his first duty station.  On 16 October 1978, he was reported as being absent without leave (AWOL).  He returned from being AWOL on 18 October 1978.

4.  The applicant's records document the highest rank and pay grade he held on active duty was private first class (PFC)/E-3.  The record shows he achieved this rank and pay grade on 25 October 1978.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

5.  On 24 May 1979, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties in that he negligently failed to remain awake while on barracks guard duty on 3 May 1979.  The imposed punishment was a forfeiture of $50.00 pay per month for one month and extra duty for 7 days.  The applicant did not appeal the punishment.

6.  On 2 October 1979, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for willfully disobeying an order from and using disrespectful language towards his superior warrant officer on 2 September 1979.  The imposed punishment was a reduction in pay grade to E-2 and 30 days in the correctional confinement facility.  The applicant appealed the punishment on 2 October 1979; however, his appeal was denied on 10 October 1979 and he was so notified.

7.  On 7 April 1980, court-martial charges were brought against the applicant for assaulting his superior noncommissioned officer by striking him in the face with his hand on 25 March 1980; for being disrespectful in language towards his superior noncommissioned officers on 25 March 1980 (two specifications); for being drunk and disorderly in station on 25 March 1980; and for wrongfully using provoking words and gestures towards a military police who was in the execution of his duties on 19 February 1980.

8.  On 24 April 1980, the applicant voluntarily submitted a request for discharge for the good of the service under the provision of Chapter 10, Army Regulation 635-200.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, each of which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request.

9.  The applicant stated that prior to completing his request for discharge for the good of the service, he had been afforded the opportunity to consult with appointed counsel or counsel of his own choice.  On 24 April 1980, the applicant received counseling by a Captain assigned to the Judge Advocate General’s Corps.  He was advised of the basis for the contemplated trial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  He acknowledged that the decision to submit a request for discharge for the good of the service was his own.

10.  The applicant stated he understood that if his request was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He understood that as a result of issuance of such a discharge he could be deprived of all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs] and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

11.  The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  The applicant indicated he wished to submit a statement; however, his statement was not found in his service personnel records and it is therefore not available for the Board’s review and consideration.  In the request for an upgrade of his discharge the applicant stated, “… and my statement was omitted.”

12.  It is apparent the applicant’s request for discharge for the good of the service - in lieu of trial by court-martial was submitted for approval; however, the recommendations made by members of the applicant’s chain of command are not available in his service personnel records and are therefore not available for the Board’s review and consideration.

13.  On 29 April 1980, the Commander, XVIII Airborne Corps and Fort Bragg, a Lieutenant General, approved the applicant’s separation under the provisions of Chapter 10, Army Regulation 635-200, and directed that the applicant would be given an under other than honorable conditions discharge.

14.  The applicant underwent a mental status evaluation on 2 May 1980.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood was level, his thought process was clear, his thought content was normal, and his memory was good.  Neither impressions nor remarks were entered on the DA Form 3822-R (Mental Status Evaluation) that was competed.

15.  The applicant was discharged with an under other than honorable conditions discharge, in the rank and pay grade of Private (PV1)/E-1, on 9 May 1980, under the provisions of Army Regulation 635-200, Chapter 10.  The narrative reason for separation entered on the DD Form 214 shows, “Administrative Discharge-Conduct triable by court-martial.”

16.  On the date of his discharge, the applicant had completed 2 years, 6 months, and 11 days creditable active military service, with 2 days time lost.

17.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  After careful consideration of his military record and all other available evidence, the ADRB determined he had been properly discharged.  Accordingly, his request for an upgrade of his discharge was denied and he was so notified.

18.  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 submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

19.  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.

20.  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 separation specifically allows such characterization.

21.  On the DD Form 458, Charge Sheet, which was prepared on 7 April 1980, appears the names of six witnesses to the events for which the applicant was charged.  Of the six witnesses, three were identified as witnesses for the accused and the remaining three were witnesses for the prosecution.  It is believed that because the applicant’s case did not go to trial since he opted to submit his request for discharge in lieu of trial by court-martial none of the witnesses were allowed to speak either for or against the applicant.

DISCUSSION AND CONCLUSIONS:

1.  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. 

2.  The available evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

3.  The available evidence indicates that all requirements of law and regulation were met and it is believed that the rights of the applicant were fully protected throughout the separation process.





4.  The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  The characterization of service for this type of 
discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  It is therefore believed that the reason for discharge and the characterization of service were both proper and equitable.

5.  The evidence shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations; however, after careful review of the facts and circumstances, it was determined that the applicant had been properly discharged.  Accordingly, his request for an upgrade of his discharge was denied and he was so notified.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions, or to a fully honorable discharge.

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)                                         AR20080010346



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ABCMR Record of Proceedings (cont)                                         AR20080010346



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