IN THE CASE OF:	  

		BOARD DATE:	        6 August 2009

		DOCKET NUMBER:  AR20090004499 


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 be upgraded.

2.  The applicant states, in effect, he was a good Soldier until he started having marital problems and his wife left him.  He states this caused him to start drinking to take away the pain and his troubles started coming one after another.

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 15 November 1973 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 54B (Decontamination Specialist).

3.  On 23 May 1975, the applicant was assigned to the 267th Chemical Company, Johnston Island.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 20 February 1976 and 22 May 1976.  His offenses included negligence in the performance of his duties and dereliction in the performance of his duties.

5.  On 12 June 1976, the applicant accepted NJP under Article 15, UCMJ, for unlawfully striking a specialist four on the left eye and behind the right ear with his fist.

6.  On 24 June 1976, the applicant was assigned to the 16th Field Service Company, Fort Lee, VA.

7.  On 12 November 1976, the applicant's commander requested that he be held beyond the expiration of his term of service (ETS) due to charges being preferred on 8 October 1976 against him for robbery and assault and battery.  The request for holding the applicant beyond his ETS was approved on 18 November 1976.

8.  On 10 February 1977, the applicant was convicted by a general court-martial  of unlawfully and repeatedly hitting a private first class (PFC) in the face and on the head with his hand and fist, unlawfully grabbing the PFC's chest, and unlawfully spitting on the PFC's face.  His sentence consisted of 45 days of confinement at hard labor.  The applicant was placed in confinement on 10 February 1977.

9.  On 9 March 1977, court-martial charges were preferred against the applicant for stealing from the person of a private, by means of force and violence and putting him in fear against his will, one St. Christopher locket, three keys, four twenty-five cent pieces, and one Zippo cigarette lighter, of a value of about $43.00.

10.  On 11 March 1977, the applicant voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he is charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions 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 under other than honorable conditions discharge.

11.  The applicant's first intermediate commander recommended his request be disapproved and the applicant be made to stand trial for the charges.  His second and third intermediate commanders recommended approval of his request and that he receive a discharge under other than honorable conditions.

12.  On 24 March 1977, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the characterization be under other than honorable conditions.

13.  On 25 March 1977, the applicant was released from confinement.  On 28 March 1977, the applicant received a mental status examination.  The examiner found that the applicant showed no evidence of thought disorder and that he showed no symptoms of psychosis or neurosis.  The examiner cleared the applicant for administrative discharge.

14.  On 29 March 1977, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 by reason of administrative discharge - conduct triable by court-martial.  He had completed 3 years and 3 months of active service that was characterized as under other than honorable conditions.  He had 48 days of time lost.

15.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 28 April 1980, 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.

16.  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 had 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.  The request must have included the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

17.  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.  

18.  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 he started having problems in the Army when his wife left him and he started drinking.

2.  The applicant accepted NJP for one instance of striking a private.  He was convicted by a general court-martial for unlawfully and repeatedly hitting a PFC in the face and on the head with his hand and fist.  Charges were then preferred against the applicant for stealing from a private by means of force and violence and putting him in fear.

3.  The fact that the applicant was having marital problems does not in any way excuse the crimes of violence and assault on fellow Soldiers.  Therefore, the applicant's personal problems were not considered as mitigating factors in the determination of this case.

4.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.

5.  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.
6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  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.

8.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090004499



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ABCMR Record of Proceedings (cont)                                         AR20090004499



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