IN THE CASE OF:	  

		BOARD DATE:	  14 May 2009

		DOCKET NUMBER:  AR20090001842 


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 undesirable discharge under other than honorable conditions be upgraded.

2.  The applicant states he was unfairly advised by the person conducting a hearing in his case.  He states he defended himself when attacked by two fellow Soldiers.  He states he was confronted by an E-7 and a specialist four when the E-7 began to taunt him and pulled a knife.  He states that a review of trial records will clearly show his trial was one sided, loaded, and unfair.

3.  The applicant provides no additional evidence or official documentation in support of his application.

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 personnel records show he enlisted in the Regular Army on 22 December 1972 for a period of 2 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76A (Supplyman).

3.  On 19 March 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for possession of marijuana.

4.  On 14 June 1973, the applicant was assigned to Headquarters, U.S. Army Petroleum Distribution System, Korea.

5.  The applicant accepted NJP under Article 15, UCMJ, on 18 July and 
18 September 1973.  His offenses included two specifications of absence from his appointed place of duty, disrespect toward a commissioned officer, and being drunk and disorderly in Camp Libby, Korea.

6.  On 14 September 1973, court-martial charges were preferred against the applicant for two specifications of assault on an enlisted member in a local club, violation of a lawful General Regulation, disobeying a lawful order from a non-commissioned officer, and disobeying a lawful order from a commissioned officer.

7.  Statements from the two enlisted members the applicant was charged with assaulting indicated that the applicant had struck both of them from behind.

8.  A statement from the proprietor of the club where the alleged assault occurred corroborated the two enlisted member's statements as to who had instigated the incident where the alleged assault occurred.

9.  On 5 October 1973, the applicant signed his request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

10.  The applicant's commander and intermediate commanders recommended approval of the applicant's request for discharge and that he be furnished general discharge.

11.  On 16 October 1973, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and that he be furnished an Undesirable Discharge Certificate.

12.  On 26 October 1973, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service.  He had completed 10 months and 5 days of active service that was characterized as under conditions other than honorable.  

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 18 October 1982, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate.

15.  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 contends that he was acting in self defense when the assaults he was accused of occurred.  However, statements from three other individuals involved in the incident directly dispute the applicant's contention of the events.  In addition, the applicant did not submit any evidence or official documentation to corroborate his contention.  Therefore, his contention of self defense was not considered as a mitigating factor in the determination of his case.

2.  The applicant contends that he was unfairly counseled by the person conducting a hearing and that his trial was one sided, loaded, and unfair.  However, in his request for discharge, dated 5 October 1973, he indicated that he was afforded the opportunity to speak with counsel prior to requesting a discharge for the good of the service.  Based on the applicant's request and approval for discharge for the good of the service, the applicant was not tried for the offenses with which he was charged.  Therefore, there is no record of a trial to which the applicant contends was unfair.

3.  The applicant voluntarily requested discharge, acknowledged that he may be discharged under other than honorable conditions, and that he would be furnished an Undesirable Discharge Certificate.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

6.  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 that 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)                                         AR20090001842





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ABCMR Record of Proceedings (cont)                                         AR20090001842



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