IN THE CASE OF:	  

		BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090006389 


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 under other than honorable discharge to a general discharge.

2.  The applicant states that he was young and immature at the time and that he got involved in an altercation with another Soldier while on charge of quarters (CQ) duty.  He adds that he was verbally and physically provoked but due to his young age did not know how to respond to the situation.  He further adds that prior to this incident he sought help from another sergeant but was left alone to deal with the situation.  He was then taken to the Military Police (MP) station for a statement but for some reason the MP report did not reflect what he had stated, so he refused to sign it.  He goes on to say that no one involved in the incident was punished, he was not provided with an opportunity for retraining and/or rehabilitation, and that his counsel gave him several papers to sign with the assumption that his discharge would be automatically upgraded after 6 months. He concludes that if he had known he would lose his military benefits, he would not have agreed to the discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 November 1982; a copy of CID Form 94 (Agent’s Investigation Report), dated 29 July 1982; a copy of his reduction orders; copies of four witness statements; a copy of a letter of commendation, dated 14 September 1982; a copy of a certificate of appreciation, dated 9 February 1982; six character reference letters; copies of his academic transcripts; and a statement of good standing 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 records show he was born on 20 September 1962 and enlisted in the Regular Army at 17 years of age for a period of 3 years on 20 November 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer). The highest rank/grade the applicant attained during his military service was specialist four/E-4.

3.  The applicant’s records also show he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  On an unknown date in 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing one ounce, more or less, of marijuana.  His punishment consisted of a forfeiture of $104.00 pay for 1 month, 14 days of extra duty, and a reduction to private/E-1 (suspended until 24 September 1980).

5.  On 2 June 1981, the applicant departed his Fort Drum unit in an absent without leave (AWOL) status.  He returned to his unit on 12 June 1981.

6.  On 13 July 1981, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 2 June 1981 through on or about 12 June 1981.  His punishment consisted of 14 days of restriction, 14 days of extra duty, a forfeiture of $135.00 pay for 1 month, and a reduction to private/E-2 (suspended for 90 days).

7.  On 28 June 1982, the applicant was involved in an argument with another Soldier over the use of the CQ telephone that led to the applicant assaulting the other Soldier by dragging him along a hallway by his legs, pushing him down a flight of concrete steps, striking him in the head and face with his fist, and did thereby intentionally inflict bodily harm in the form of contusions of the kidney, forehead, and skull.

8.  On 3 November 1982, court-martial charges were preferred against the applicant for one specification of assault on or about 26 June 1982.

9.  On 3 November 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

10.  In his request for discharge the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also submitted a statement on his own behalf and stated that he had given considerable thought to his decision and believed that approval would be in the best of interest of the Army and his own.  He also stated that he sincerely regretted what happened and appealed for an under honorable conditions (general) discharge.

11.  On 3 or 4 November 1982, the applicant's immediate and intermediate commanders recommended approval of the applicant’s discharge and remarked that this action was in the best interest of the Army and the applicant.

12.  On 5 November 1982, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 15 November 1982, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 11 months, and 26 days of creditable active military service and had 10 days of lost time.

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

14.  The applicant submitted a copy of his massage therapist license, a copy of a certificate of appreciation, a letter of commendation, his academic transcripts, and six character reference letters as follows:

	a.  In a letter of character, dated August 2008, a retired U.S. Marine Corps sergeant states that he met the applicant in a trucking company.  The sergeant describes the applicant as a hard-working professional who set the example for others.

	b.  In a character reference letter, dated 7 October 2008, an assistant principal states that he has known the applicant for the past 27 years as an honest and a hard-working husband and father as well as a dependable and loyal friend.

	c.  In a letter of appreciation, dated 11 February 2008, the State of Florida Director of Safety commends the applicant on his superlative efforts and professionalism during an accident.

	d.  In an undated letter of reference, a corrections probation officer and former colleague of the applicant describes him as a highly intelligent, professional, and hard-working individual and friend.

	e.  In a statement, dated 25 August 2008, a senior associate pastor and former colleague of the applicant also describes him as a hard-working and professional individual.

	f.  In a character reference letter, dated January 2009, the applicant’s spouse describes him as a loving and dedicated husband and father as well as an honest and hard-working individual who is involved in his family and community.

15.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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 his under other than honorable discharge should be upgraded.

2.  With respect to the applicant’s arguments:

	a.  The evidence of record shows that the applicant was 17 years of age at the time he enlisted in the Regular Army and was nearly 20 years of age at the time he committed his offense that led to his discharge.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence that shows his assault on another Soldier was the result of his age.

	b.  The Army has never had a policy that provides for an automatic upgrade of a discharge due to passage of time.

	c.  There is no evidence that the applicant’s counsel was inept.  The applicant consulted with legal counsel and was fully advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  He also submitted a statement in which he stated that he had given considerable thought to his decision, sincerely regretted what happened, and believed that approval would be in the best of interest of the Army and himself.

	d.  His record shows other instances of misconduct and although these instances are not related to his discharge they suggest a pattern of indiscipline.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant’s post-discharge personal and academic achievements as well as his character reference letters were noted.  However, 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 evidence that would satisfy this requirement.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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.



      ____________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)                                         AR20090006389



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ABCMR Record of Proceedings (cont)                                         AR20090006389



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