IN THE CASE OF:	  

		BOARD DATE:	  16 DECEMBER 2008

		DOCKET NUMBER:  AR20080013966 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was advised that there was no evidence and that charges would not be filed against him.  He also states that the statements made against him were false and contradictory.  He further states, in effect, that he believes his counsel should have reviewed the statements and should not have advised him to sign the waiver papers.  He does not believe he should have to carry this for over 37 years.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), copies of a DA Form 19-32 (Military Police Report), five DA Forms 2823 (Witness Statement), and four character reference letters.

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 10 November 1969, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 05B (Radio Operator).  He was promoted to pay grade E-3 on 21 April 1970.  

3.  The applicant submits a copy of a DA Form 19-32, dated 9 December 1970, that shows an investigation was initiated upon receipt of information from a complainant that a fight occurred at the 71st Evacuation Hospital compound. The investigation disclosed that on 9 December 1970, the applicant had struck a fellow Soldier in the face and discharged a weapon.  Approximately 2 minutes following the fight, the applicant approached the fellow Soldier with an M-16 rifle. Due to the fact the applicant did wrongfully discharge the weapon, with no attempt to direct it at any individuals, the investigation was closed on 17 December 1970.  

4.  On 10 December 1970, the applicant's commander initiated a Report for Suspension of Favorable Personnel Actions, due to the applicant being charged with aggravated assault and requested court-martial action.

5.  On 13 December 1970, a Charge Sheet (DD Form 458) was prepared by the Commander, 146th Signal Company (Support), 43rd Signal Battalion, APO San Francisco, California.  The applicant was charged with one specification of assaulting his superior noncommissioned officer by striking him in the face with his fist on 2 December 1970 [sic] and one specification of committing an assault, with intent to commit murder, upon a fellow Soldier by firing an M-16 at him.

6.  On 28 December 1970, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

7.  The applicant also submits a copy of a DA Form 2823, dated 3 January 1971, wherein a fellow Soldier stated in a sworn statement that on 9 December 1970, he and the applicant got into an argument and the applicant swung at him first, then hit him in the mouth.  He swung back, the applicant got mad and went after his M-16 weapon, they ran, and the applicant fired a couple of rounds.

8.  The applicant further submits copies of four additional DA Forms 2823, each dated 3 January 1971, wherein each witness gives an account of the fight involving the applicant, his firing of his weapon, his apprehension and removal to the orderly room.

9.  On 12 January 1971, the applicant's unit commander recommended approval of the applicant's request for discharge for the good of the service.  The unit commander stated that the applicant's behavior pattern had proven to be extremely unstable, even more evident when he was under the influence of alcohol.  The applicant stated that everyone was against him because he was a Mexican and he had become very hostile towards his fellow Soldiers on numerous occasions.  The unit commander also stated that the applicant had not responded to counsel by himself or the company first sergeant.  He recommended the applicant be discharged for the good of the service with issuance of an undesirable discharge for unfitness.

10.  On 24 January 1971, the applicant's battalion commander recommended approved of the unit commander's recommendation.  He stated that the applicant would not adjust to military life and his hostility created a hazard more dangerous to his fellow Soldiers than the enemy.  Continued service could only result in an unreasonable added burden for his superiors.  The battalion commander also stated that rehabilitation through confinement offered little probability of success.  

11.  On 29 January 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

12.  The applicant was discharged on 3 February 1971, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial, with his service characterized as under other than honorable conditions.  He was credited with 1 year, 2 months, and 23 days total active service.

13.  On 16 November 1977, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.


14.  The applicant submits four character reference letters attesting to his post-service capabilities, thoughtfulness, maturity, and friendship.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An undesirable discharge was normally considered appropriate.  

16.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, also 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 contentions that there was no evidence against him and his discharge should be changed have been noted.  However, the applicant was charged with one specification of assaulting his superior noncommissioned officer and one specification of committing an assault upon a fellow Soldier, with intent to commit murder.  After consulting with counsel, he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully accused or discharged.  The applicant also acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also elected not to submit a statement in his own behalf.


2.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge was normally under 
other than honorable conditions with the issuance of an undesirable discharge and the evidence shows the applicant was aware of that prior to being discharged.  The separation authority could have directed a general discharge if such a discharge were merited by the Soldier's overall record; however, the evidence shows the separation authority decided he did not merit a general discharge after considering the applicant's record and offenses.

3.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a fully honorable discharge.  The applicant has provided no evidence or argument to show the discharge should be upgraded and his military records contain no matter upon which an upgrade should be granted.  The documentation submitted in support of his application provided neither probative evidence nor a convincing argument in support of an upgrade of his discharge.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  Therefore, there is no basis for granting the applicant's request for an upgrade of his undesirable 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)                                         AR20080013966



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ABCMR Record of Proceedings (cont)                                         AR20080013966



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