IN THE CASE OF:	  

		BOARD DATE:	        2 December 2008

		DOCKET NUMBER:  AR20080014062 


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 (UOTHC) be upgraded.

2.  The applicant states that he was injured when terrorists bombed the La Belle Discotheque in Berlin.  Two months later, he went from being a model Soldier to a dishonorable discharge with no assistance from the Army.  

3.  The applicant provides two letters, with translations, from the German hospital where he was treated and what appears to be one page from a court action.

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 20 February 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was honorably discharged on 21 October 1982 and immediately reenlisted on 22 October 1982.  He was reassigned to Berlin, Germany, on or about 2 March 1984.

3.  On 13 February 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty, to wit:  6:00 a.m. formation for the Quick Reaction Platoon.

4.  On 5 April 1986, the applicant was injured when a terrorist bomb exploded in the La Belle Discotheque.  The applicant provided evidence to show he was hospitalized for two weeks for perforation of the eardrum as well as for a dislocation of the vertebra.  He was awarded the Purple Heart for his wounds received in the incident.

5.  The court-martial charges and discharge packet are not available.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 20 May 1986, indicates the applicant demanded trial by court-martial from an Article       15 read on 13 May 1986.  

6.  On 10 July 1986, a local bar to reenlistment was approved on the applicant.  The commander had stated that the applicant was an unsatisfactory Soldier who had consistently refused to do his job and obey lawful orders.  The commander stated that, in the six months he had commanded the company, the applicant had never performed his duties as a Soldier in an adequate manner.  He had no respect for his chain of command and had repeatedly been disrespectful to his superiors while in front of other Soldiers.

7.  A DA Form 268, dated 15 July 1986, indicates the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

8.  On 17 July 1986, 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    in lieu of court-martial, with a discharge UOTHC.  He had completed a total of     6 years, 4 months, and 28 days of creditable active service and had no lost time.

9.  The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge.

10.  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 UOTHC is normally considered appropriate.  

11.  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 the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge packet is not available and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  It is acknowledged that the applicant was injured when terrorists bombed the La Belle Discotheque and that he received the Purple Heart for wounds received in that incident.

3.  However, it is also noted that the applicant's records do not confirm that he was a "model" Soldier prior to that incident.  He had received an Article 15 in February 1985.  His commander noted in the July 1986 local bar to reenlistment that the applicant had been an unsatisfactory Soldier who had consistently refused to do his job and obey lawful orders in the six months the commander commanded the company.  

4.  The applicant provides insufficient evidence to show that his discharge or the characterization of his discharge was improper or inequitable.



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.




      _______ _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)                                         AR20080014062





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ABCMR Record of Proceedings (cont)                                         AR20080014062



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