IN THE CASE OF:	  

		BOARD DATE:	        13 January 2009

		DOCKET NUMBER:  AR20080017825 


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 an upgrade of his discharge. 

2.  The applicant states he was protecting himself when the action was committed.  

3.  The applicant did not provide any additional documentary evidence in support of his request. 

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 records show he enlisted in the Regular Army for a period of 4 years on 27 March 1991.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).  The highest grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records also show he served in Germany from 28 August 1991 to 26 January 1993 and that he was awarded the Army Service Ribbon, the National Defense Service Medal, the Army Achievement Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The applicant’s records contain a final report, dated 6 October 1992, submitted by the Wiesbaden Resident Agency, U.S. Army Criminal Investigation Command (USACIDC).  This report shows that an investigation revealed that on 26 August 1992, the applicant and another Soldier became involved in a verbal altercation and that the applicant cut the other Soldier with a knife, resulting in that Soldier being admitted to the hospital.  During the course of this investigation, sufficient reliable information was developed to show the other Soldier assaulted the applicant by threatening harm to him and the applicant assaulted the other Soldier by stabbing him.

5.  On  13 October 1992, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stabbing another Soldier in the left arm with a pocket knife and did thereby intentionally inflict grievous bodily harm upon him (severed deltoid muscle), on or about 26 August 1992.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $392.00 pay per month for two months (one month pay at $392.00 suspended until 12 April 1993), and 45 days of extra duty. 

6.  On 10 November 1992, the suspension of the applicant’s punishment pertaining to forfeiture of $392.00 pay was vacated, for being drunk and disorderly and unlawfully carrying on or about his person a concealed weapon (knife), on 19 October 1992.

7.  On 8 December 1992, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct, commission of a serious offense.  Specifically, the immediate commander cited the applicant’s incident of aggravated assault, inflicting grievous bodily harm.

8.  On 8 December 1992, the applicant acknowledged receipt of the commander's intent to separate him.  He was subsequently advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He also acknowledged that he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both, Federal and State laws.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and declined making a statement on his own behalf. 

9.  On 8 December 1992, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200 for misconduct, citing his aggravated assault.  The immediate commander further recommended a waiver of the requirement for a rehabilitative transfer and that the applicant be issued a “general” discharge with a characterization of service as under other than honorable conditions. 

10.  On 8 December 1992, the applicant’s intermediate commander reviewed the applicant's discharge packet and recommended approval of his discharge with an under other than honorable conditions characterization of service. 

11.  On 29 December 1992, a legal sufficiency review was conducted by an administrative law attorney concerning the applicant’s separation in accordance with chapter 14 of AR 635-200.  The attorney recommended the applicant be separated from the service with a general discharge and a characterization of service as under other than honorable conditions. 

12.  On 30 December 1992, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of AR 635-200 by reason of misconduct and directed the applicant be furnished an under other than honorable conditions characterization of service.  Accordingly, the applicant was discharged on 3 February 1993.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with an under other than honorable conditions character of service.  This form further confirms he completed 1 year, 10 months, and 7 days of creditable military service. 

13.  There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations. 

14.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  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. 

16.  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 contention that his discharge should be upgraded because he was protecting himself was carefully considered; however, it is not sufficiently mitigating in granting him the requested relief.

2.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Furthermore, the applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14, AR 635-200 due to misconduct, commission of a serious offense of aggravated assault.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct of aggravated assault.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 did not submit sufficient evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general 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.


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      _______ _   _______   ___
               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)                                         AR20080017825



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ABCMR Record of Proceedings (cont)                                         AR20080017825



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