IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090010212 


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, upgrade of his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that while stationed at Fort Bragg, NC, he had a bad parachute landing and felt numb and unable to feel anything after hitting the ground.  He states his squad leader and platoon sergeant told him to go to the doctor; however, he stated he felt alright.  The next day his sister also told him to go to the doctor and again he stated that he felt fine.  He states he soon began suffering from memory loss, his personality started to change, and he could no longer concentrate or remember things which resulted in him being late for work and receiving an Article 15.  He states that while assigned to Camp Hovey, Korea, he again had a bad parachute fall and hurt his back and hit his head on the ground, which resulted in his having black-outs and severe headaches.  He also states he was beat up by Koreans a couple of times and he was beaten by noncommissioned officers (NCOs) in his unit.  He further states that he is requesting that his medical records be reviewed and his discharge be upgraded so that he can apply for health benefits through the Department of Veterans Affairs (VA).

3.  The applicant provides no 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 record shows he enlisted in the Regular Army (RA) and he entered active duty on 12 November 1975.  It also shows he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and that private (PV2)/E-2 was the highest rank/grade he attained while serving on active duty.  He completed basic airborne training; however, he was a deliberate terminator effective 20 September 1976.

3.  The applicant’s record shows that during his active duty tenure he earned the Expert Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant's Official Military Personnel File (OMPF) is void of any medical documents showing he suffered from or was treated for any disabling physical or mental conditions while serving on active duty.

5.  The applicant's record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following six separate occasions for the offenses indicated:  3 June 1976, for being absent without leave (AWOL) and failing to go at the time prescribed time to his appointed place of duty; 10 December 1976, for being AWOL; 
31 March 1977, for wrongfully urinating on the floor of the living quarters of his fellow platoon members and being disrespectful in language towards his superior NCOs; 7 May 1977, for failing to go at the time prescribed to his appointed place of duty; 17 May 1977, for being absent from his unit without authority; and 
16 July 1977, for being disrespectful in language towards his superior NCO.

6.  On 7 September 1977, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 90, 91, 116, and 128 of the UCMJ as follows:  Article 90, by having received a lawful 
command from his superior commissioned officer and willfully disobeying the 
same; Article 91, by being disrespectful in language towards his superior NCO; Article 116, by causing a breach of the peace by entering the Katusa Club at Camp Hovey and using contemptuous language; and Article 128, by unlawfully striking another Soldier on the face with a sharp object.

7.  On 23 September 1977, a second DD Form 458 was prepared preferring additional court-martial charges against the applicant for violating Articles 89, 91, 92, and 134 of the UCMJ as follows:  Article 89, by behaving himself with disrespect towards his superior commissioned officer; Article 91, by being disrespectful in langue towards his superior NCOs; Article 92, by disobeying a lawful order; and Article 134, by wrongfully communicate a threat.

8.  On 24 September 1977, another DD Form 458 was prepared preferring additional court-martial charges against the applicant for violating Articles 80 and 134 of the UCMJ as follows:  Article 80, by attempting to escape from lawful custody; and Article 134, by wrongfully communicating a threat to injure his superior commissioned officer and NCOs and by breaking restriction.

9.  On 6 October 1977, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the effects of a UOTHC discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated that he understood that by submitting the discharge request, he was acknowledging that he was guilty of the charges against him or of a lesser included offense therein contained which also authorized the imposition of a Bad Conduct or Dishonorable discharge.  He also acknowledged that by requesting discharge he was acknowledging he understood that if his 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UOTHC discharge and he elected to submit a statement in his own behalf.

10.  On 17 October 1977, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge.  On 
26 October 1977, the applicant was discharged accordingly.  

11.  The DD Form 214 (Report of Separation from Active Duty) that was issued to the applicant shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of court-martial and that he received a UOTHC discharge.  It also shows he completed a total of 1 year, 11 months, and 15 days of creditable active military service.

12.  On 6 June 1980, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence determined that he had been properly and equitably discharged, and it voted to deny his request for a change to the characterization of his service and/or to the reason of his separation

13.  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.

14.  Paragraph 3-7b of the same regulation provides that a GD 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's request that his discharge be upgraded to a GD in order for him to receive VA medical benefits was carefully considered.  However, his desire to receive benefits alone is not sufficiently mitigating to support granting the requested relief.

2.  Further, the applicant's record is void of any indication that he was suffering from any medical conditions that would have mitigated his misconduct at the time of his discharge.  

3.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. 
After consulting with defense counsel, he voluntarily requested discharge 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.  It also shows he was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive a UOTHC, which was consistent with regulatory policy in effect at the time, and accurately reflected the applicant's overall record of service.

4.  The applicant’s record is void of any acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his acceptance of NJP on six separate occasions for misconduct.  As a result, his overall record did not support the issuance of a GD by the separation authority at the time of his discharge, nor does it support an upgrade at this time.

5.  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 this 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)                                         AR20090010212



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010212



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1