IN THE CASE OF:	  

		BOARD DATE:	       13 August 2008

		DOCKET NUMBER:  AR20080010603 


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 upgrade, to a general discharge under honorable conditions, be affirmed.

2.  The applicant states that he was issued an under honorable conditions discharge; however, it has not been corrected and still indicates a bar for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a letter, dated 8 January 2007, from the VA; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and his re-issued DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army on 9 September 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 76A (Supplyman).  

3.  The applicant arrived in Vietnam and was assigned to the 647th Quartermaster Company on 26 June 1970.

4.  On 17 August 1970, court-martial charges were preferred against the applicant charging him with committing an assault upon a group of about           30 Soldiers of the 647th Quartermaster Company by shooting at them with a dangerous weapon, to wit:  a loaded M-16 rifle; and with violating a lawful general regulation by chambering a round while not under imminent tactical engagement.

5.  Witness statements taken at the time indicated:

	Captain D___:  “…I heard a round fired.  At this time I went outside and saw (the applicant) with a loaded weapon.  Several men were struggling with him trying to get the weapon from him.  Another round went off just missing one of my men.  The weapon was then taken from him…At this time SP4 (Specialist Four) S___ came around the arms room building with a loaded weapon and fired into a group of about 30 people standing outside the theater.  He was apprehended…(The applicant) had gotten another weapon and was disarmed before any more rounds were fired….”

	Private First Class (PFC) C___:  “I was at a Company party…(the applicant) and SP4 George S___ told me they were gong to f___ up a brown guy, which meant a Spanish person.  So, I ask him whom was he talking about.  At that time (the applicant) swung at me and we started fighting.  Someone came and broke up the fight. Both (the applicant) and SP4 S___ ran to their hooch and got their M-16 rifle and starting firing towards the direction of the theater.  They both fired at least a couple of rounds….”

	PFC Mc___:  “…I was standing outside of the arms room, and saw (the applicant) and SP4 S___ come running by.  Then I saw (the applicant) fire his weapon at somebody and following (the applicant’s) actions, SP4 S___ fired his weapon at someone also….”

	
	PFC Mo___:  “…I was at our company party.  I went outside where PFC C___ and (the applicant) were arguing…as I came out I saw C___ kick (the applicant) in the midsection and at the same time draw a pocket knife…I could plainly see that it was a knife with about a four inch blade…C___ advanced and hit (the applicant) in the face…(the applicant) did not fight back.  About five minutes later (the applicant) stood about five feet from the company arms room and fired a shot in the air…(the applicant) managed to get free and ran back to his barracks where he got another weapon….”

	PFC Ma___:  “…I was leaving a company party...and heard an argument outside.  PFC C___ and (the applicant) were the ones having the argument.  (The applicant) became violent and started struggling with C___.  At this time PFC C___ hit him…(the applicant) returned a short time later carring (sic) a weapon and fired one round in the air.  Then another round was fired at the group…”

	SP4 H___:  “…I walked out of the theater where the party was being held and saw (the applicant) fire a round towards a group of men standing outside the theater.  I ran back into the theater and heard several more shots being fired….”

	Staff Sergeant A___:  “…At this time I saw SP4 S___ and (the applicant) pointing weapons at a group of men standing close to the theater.  Just before I had walked out I had heard several rounds being discharged…(the applicant) went and got another weapon and it also had to be forcefully taken from him.”

6.  On 5 September 1970, 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 in lieu of trial by court-martial.  He indicated he had not been subjected to coercion with respect to the request and was advised of the implications attached to it.  He understood that, as a result of the issuance of an undesirable discharge, he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, 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 might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He submitted no statement in his own behalf.

7.  On 7 September 1970, the applicant completed a separation physical and was found qualified for separation.
8.  On 14 September 1970, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.

9.  On 17 September 1970, 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 an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 1 year and 9 days of creditable active service and had no lost time.

10.  On 9 September 1974, the applicant requested an upgrade of his discharge. He had stated in his application to the Army Discharge Review Board (ADRB):

“It all began at a party.  My friend and I was reading a letter from his parents, and looking at pictures.  All of certain some men from the company come busting threw the door.  At the time the company was having a party.  After the 3 or 4 men busted in one of the men hit me in the mouth.  The first thing came to my mine was to protect myself.  And that is when I got my weapon, and said stop, he would not stop, so I shot one time in the air….”

11.  On 4 November 1974, the ADRB denied the applicant’s request for an upgraded discharge.

12.  The applicant applied for VA educational assistance.  On 23 April 1975, a VA Authorization Board determined that the applicant’s service was terminated under dishonorable conditions.

13.  On 27 July 1977, the ADRB, under the provisions of the Department of Defense Special Discharge Review Board (SDRP), upgraded the applicant’s discharge to a general discharge under honorable conditions.  It noted the applicant met the secondary criteria based upon his age, general aptitude, and length of service at time of his discharge; his education level at the time of his discharge; and possible personal problems that may have contributed to the acts which led to his discharge.

14.  On 25 April 1978, the ADRB, having re-reviewed the applicant’s record as required by Public Law 95-126, determined not to affirm the applicant’s re-characterization of his discharge.  The ADRB determined that due to the nature and severity of the charges for which the applicant requested discharge under chapter 10, upgrade under uniform standard was not appropriate and voted unanimously to deny affirmation.

15.  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 under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

16.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. 

17.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The statements provided with the applicant’s discharge packet have been carefully considered.

2.  It appears that at least one of the statements (from PFC Mo___) indicated that there may have been mitigating circumstances surrounding the assault charge against the applicant.  However, most of the statements indicate that the applicant not only fired at least one round at a Soldier/group of Soldiers, but went to obtain another weapon after his first rifle was taken from him.  


3.  A court-martial could have heard all of the evidence against, and for, the applicant; however, he voluntarily elected discharge over trial by court-martial.  

4.  When he signed his discharge request, the applicant indicated he understood that, as a result of the issuance of an undesirable discharge, he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  

5.  The ADRB upgraded the applicant’s characterization of service to general under honorable conditions under the SDRB.  However, under the Relook Program the ADRB determined that due to the nature and severity of the charges for which he requested discharge, upgrade under uniform standard was not appropriate and voted unanimously to deny affirmation. 

6.  Based upon the preponderance of the evidence in the various witness statements, there is insufficient evidence that would warrant the ABCMR affirming the applicant’s discharge upgrade. 

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.



      _______xxxx___________
               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)                                         AR20080010603



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ABCMR Record of Proceedings (cont)                                         AR20080010603



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