IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20090001570 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his platoon sergeant, Sergeant First Class (SFC) P____, initiated a conflict while off duty that escalated into a physical altercation in which he struck SFC P____ once in self defense.  The SFC took legal action against him and he was told by his unit leadership that if he stayed in the Army he would go to jail.  He believes that he was inequitably punished as his career ended over this single incident in 2 years of service with no other adverse action.

3.  The applicant provides a self-authored letter in support of his application which states, in effect, that SFC P____ initiated the fight by asking him to step outside the barracks.  Once outside, as SFC P____ swung to hit him, he struck SFC P____ in self-defense.  SFC P____ called the military police and reported the incident and he was taken into custody.  The next morning his unit leadership told him that he had a choice of being involuntarily extended in Korea to face a special court-martial or accepting a general discharge.  He met with an attorney who recommended that he take the discharge.  The attorney said without a witness to the incident, he would likely be convicted and sentenced to jail time.  He adds that he greatly enjoyed his time in the Army and had always wanted to make military service his career.  However, due to the attorney's advice and pressure from his unit leadership, he opted for the general discharge.  Although no one can give him back the opportunity to spend his life serving in the Army, he hopes that the Army Board for Correction of Military Records (ABCMR) can rectify the injustice of him receiving the "under other than honorable conditions" character of service.

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 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 that he enlisted in the Regular Army and entered active duty on 12 November 1980 for a period of 3 years.  He completed the required training and was awarded military occupational specialty 13B (Cannon Crewman).  The highest grade he attained was pay grade E-4.

3.  On or about 22 June 1982, the applicant received nonjudicial punishment for assaulting another Soldier by shoving him in the face with his hands on or about 24 May 1982.  His imposed punishment was a forfeiture of $50.00 pay, 14 days of restriction, and 14 days of extra duty.

4.  On 16 March 1983, court-martial charges were preferred against the applicant for one specification of assault against his superior noncommissioned officer (NCO), SFC P____, who was then in the execution of his office by striking him on the face and in the eye with his fist on 19 February 1983; for one specification of being drunk and disorderly in military quarters; and for one specification of wrongfully communicating a threat to injure his superior NCO by saying, "I will kill Sergeant P____," or words to that effect.  Attached to the court-martial charge sheet were six unsworn statements from witnesses of the incident.  The six witnesses statements indicated that the applicant initiated the fight and that the applicant was drunk, disorderly, and disrespectful to the senior NCO.

5.  On 26 March 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under other than honorable conditions, and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged that the charges preferred against him under the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he did not desire further rehabilitation or to perform further military service.  He acknowledged that he was making the request by his own free will and had not been subjected to any coercion.  By submitting this request he acknowledged that he was guilty of one or more of the charges that were preferred against him.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also stated his understanding that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  The applicant did not submit a statement in his own behalf; he did not request a separation physical or a delay in the processing of all court-martial charges.

6.  On 1 April 1983, the separation authority approved the applicant’s request for discharge, that he be reduced to the lowest enlisted grade, and directed that he be that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 13 April 1983, the applicant was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with a discharge under other than honorable conditions.  He completed 2 years, 5 months, and 2 days of creditable active military service.

8.  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.  An under other than honorable conditions discharge is normally considered appropriate.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  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.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be without merit.  There is no evidence and the applicant has not provided any evidence that shows that the punishment he received was inequitable or unjust.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20090001570



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ABCMR Record of Proceedings (cont)                                         AR20090001570



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