IN THE CASE OF:	  

		BOARD DATE:	    14 January 2010

		DOCKET NUMBER:  AR20090013291 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, there was a conflict within the command and he was caught in the middle and was frustrated.  He continues that he was told he took a bat and attacked people in the barracks but he does not remember.  He states he was told to agree to an under other than honorable conditions discharge or they would pursue confinement.  He adds that he was young and scared and did not know he had options and took what was suggested to him.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) in support of this 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 enlisted in the Regular Army (RA) on 2 March 1976, at the age of 18, and upon completion of initial entry training he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 11 January 1978, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for having in his possession 13 grams, more or less, of marijuana.

4.  On 28 July 1978, court-martial charges were preferred against the applicant for the following offenses:

	a.  failing to go at the time prescribed to his appointed place of duty;

	b.  committing an assault upon a noncommissioned officer by striking at him with means likely to produce grievous bodily harm, to wit:  a baseball bat; and

	c.  wrongfully communicating to a noncommissioned officer a threat to injure him, to wit:  I will kill you, or words to that effect.

5.  On 31 July 1978, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial after consulting with legal counsel.  He understood that by submitting this request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

6.  The applicant was advised of the effects of a discharge under other than honorable conditions, that he might be ineligible for many or all Army and Veterans Administration (VA) benefits, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 4 August 1978, the appropriate authority approved the applicant's request and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and that he be reduced to the lowest enlisted grade.

8.  On 15 August 1978, the applicant was discharged with an under other than honorable conditions characterization of service.  He completed 2 years,
5 months, and 14 days of creditable active service.

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

10.  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.

11.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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'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 applicant's request was made under coercion or duress.

2.  The applicant contends that he was young and scared; however, age is not a sufficiently mitigating factor.  He was 20 years and 7 months old at the time of his discharge and there is no evidence that indicates he was any less mature than other Soldiers of the same age who completed their terms of military service.


3.  The applicant's record of indiscipline includes punishment under Article 15, UCMJ, for possession of marijuana, failing to go at the time prescribed to his appointed place of duty, assault upon a noncommissioned officer, and communicating a threat to injure a noncommissioned officer.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general, under honorable conditions or an honorable discharge.

4.  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)                                         AR20090013291



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ABCMR Record of Proceedings (cont)                                         AR20090013291



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