BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090007236 


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, in effect, that his undesirable discharge be upgraded.

2.  The applicant states he was very young and his intention was to serve his country, but he felt that being sent to prison for what he was taught in basic training was wrong.  He states that while he was in basic training he caught another Soldier stealing from him and reported it to his drill sergeant.  He states he was told, in effect, to take care of it himself and he and another Soldier "handled the problem."  He states that later, while stationed in Germany, his roommate was stealing money from him and he applied the same lesson learned in basic training.  He states he now realizes how wrong it was and how he had lost his opportunity to serve his country.  He states he now wants his discharge changed so he can seek employment as a nurse with the Department of Veterans Affairs.

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 at age 22 in the Regular Army on 28 August 1975 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 11 January 1976, the applicant was assigned to Battery B, 6th Battalion, 10th Field Artillery, in Germany.

4.  On 5 February 1976, court-martial charges were preferred against the applicant for assault upon another private with a means to produce grievous bodily harm and communicating a threat to two other privates who witnessed the assault.

5.  On 10 February 1976, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, that he understood the elements of the offenses he was 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 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.

6.  The applicant's commander and intermediate commander recommended his request for discharge be approved and that he be issued an Undesirable Discharge Certificate.

7.  On 20 February 1976, the charges were reviewed by an assistant staff judge advocate who determined there was no legal objection to approving the applicant's discharge with award of an undesirable discharge.

8.  On 23 February 1976, 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.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

11.  Army Regulation 635-200 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.  

12.  Army Regulation 635-200 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 records show the applicant was 22 years of age at the time of his enlistment.  However, many Soldiers much younger than the applicant were enlisted and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  Taking matters into one's own hands is not likely a lesson taught in basic training.  That and the fact of the applicant's age would indicate that he knew better than to commit an assault on another Soldier in order to resolve the problem.  The applicant contends he committed the assault because the other private was stealing his money.  However, he has not, either now or at the time, provided any corroborating evidence to substantiate his contention.

3.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  He could have accepted court-martial and raised this issue as extenuating/mitigating circumstances.

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.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason 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.

6.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.

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)                                         AR20090007236



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ABCMR Record of Proceedings (cont)                                         AR20090007236



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