IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090004878


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 to a fully honorable discharge.

2.  The applicant states that military police illegally turned him over to civil authorities.  He alleges his case should have been handled by the military, not by civil authorities.

3.  The applicant provides a statement, dated 22 May 2009, in which he indicates he had a drinking problem and went to drug counseling.  The counseling sessions were not successful.  His drinking was caused by the stress of military life; therefore, his behavior was affected.

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 US Army Reserve (USAR) on 17 June 1986.  He served on active duty for training (ADT) from 7 October 1986 through 6 March 1987 until he was separated and returned to his USAR unit.

3.  On 20 January 1988, the applicant enlisted in the Regular Army.  He was assigned to the 264th Engineer Company, Fort Bragg, NC as a bridge crewman.

4.  On or about 28 February 1989, the applicant allegedly committed an aggravated assault on a female by striking her on the neck, face, and arm with his fist causing her to suffer a broken arm and lacerations to her face and neck.  

5.  On 1 March 1989, he departed his unit in an absent without leave (AWOL) status and remained absent until apprehended on 2 March 1989.  He was placed in pre-trial confinement during the period 2-7 March 1989, and he was placed on restriction thereafter.  On 16 March 1989, he broke the limits of his restriction.

6.  On 29 March 1989, court-martial charges were preferred against the applicant for the above offenses.  On an unknown date, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200, chapter 10, in lieu of trial by court-martial.  In so doing, he would have acknowledged he was guilty of the charges against him which authorized the imposition a discharge under other than honorable conditions and that he did not desire further rehabilitation, nor did he desire further military service.  He would have also acknowledged he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.

7.  On 26 April 1989, the General Court-Martial Convening Authority (GCMA) approved the applicant’s request for separation under the provisions of chapter 10, AR 635-200.  On 11 May 1989, he was given an under other than honorable conditions discharge under the provisions of chapter 10, AR 635-200 for the good of the service in lieu of trial by court-martial.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 3 August 1992, denied his request.

9.  AR 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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  AR 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.

11.  AR 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 his discharge should be upgraded to a fully honorable discharge.  

2.  The applicant was facing a court-martial for serious charges, including aggravated assault, AWOL, and breaking restriction.  He opted to request discharge in lieu of trial by court-martial.

3.  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.  There is no indication that the request was made under coercion or duress.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he may have received.

5.  The applicant’s records do not contain any evidence that alcohol played a role in his misconduct.  Even if alcohol had been a factor in the offenses charged, being drunk is not an excuse for aggravated assault by breaking a woman’s arm.




6.  There is no evidence in the applicant’s records that indicate he was turned over to civil authorities by the Military Police.  However, when a Soldier commits an offense in the civilian community, the Military Police Civilian Liaison routinely releases the offender to civilian law enforcement for prosecution.

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)                                         AR20090004878



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ABCMR Record of Proceedings (cont)                                         AR20090004878



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