IN THE CASE OF:	 

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090015412 


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 to honorable.

2.  The applicant states, in effect, he thought he was getting an honorable discharge because he served 18 months in Germany.  He also states that he was involved in one fight with his roommate, but he was not the one actually fighting his roommate, it was a friend of his.  He adds that his discharge has adversely impacted his life and he now suffers from several medical problems.

3.  The applicant provides no additional documentary evidence 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 enlisted in the Regular Army for a period of 2 years on 30 August 1974.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item
5 (Oversea Service) that he was assigned overseas in Germany from 22 January 1975 through 19 August 1976.

4.  On 21 July 1975, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using provoking words toward an enlisted Soldier performing duty as barracks monitor.  His punishment consisted of reduction to private/pay grade E-1 (suspended for
6 months), forfeiture of $80.00 for 1 month, 14 days of extra duty, and 14 days of restriction (suspended for 4 months). 

5.  On 29 March 1976, the applicant received NJP under Article15, UCMJ, for wrongfully having in his possession a pipe containing a residue of a controlled substance (marijuana in the hashish form).  His punishment consisted of forfeiture of $25.00 for 1 month and 7 days of extra duty. 

6.  A DA Form 2823 (Sworn Statement), dated 15 June 1976, shows that Private First Class Rodger G____, the applicant's roommate at the time, executed a sworn statement that, in pertinent part, indicated that on 6 June 1976 the applicant hit him, they began fighting, and the applicant then struck him twice in the head with a golf club handle.

7.  On 21 June 1976, charges were preferred charges against the applicant for committing an assault upon a Soldier by striking him on the head with a means likely to produce grievous bodily harm, being disrespectful in language toward his superior noncommissioned officer (NCO) who was then in the execution of his office, and wrongfully communicating a threat to injure his superior NCO.

8.  The applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The document indicates that statements in his own behalf were submitted with his request; however, the separation packet does not contain any statements by the applicant.

9.  The immediate commander and intermediate commander recommended disapproval of the applicant's request for discharge stating that the offenses were of such a nature that they must be addressed in a court-martial.

10.  Notwithstanding the recommendations of the immediate and intermediate commanders, on 10 August 1976 the separation authority approved the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10.  He also directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 23 August 1976 in accordance with the provisions of Army Regulation 635-200, chapter 10, and his service was characterized as under conditions other than honorable.  At the time he had completed 1 year, 11 months, and 24 days of net active service this period.

12.  The applicant's military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 28 October 1982, that shows the applicant requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  The Army Discharge Review Board (ADRB), after consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable and voted not to change the characterization of his service.  The applicant was notified of the ADRB's decision on 28 July 1983.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 91 for being disrespectful in language toward a noncommissioned officer, Article 128 for assault, and/or Article 134 for communicating a threat.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his under other than honorable conditions discharge should be upgraded because he was involved in a fight with his roommate, but he was not the one actually fighting his roommate and he thought he was getting an honorable discharge since he served 18 months in Germany.

2.  The applicant's contention was carefully considered.  

   a.  The evidence of record shows the applicant was personally involved in a fight with his roommate and that he struck him twice in the head with a golf club handle.  Thus, the evidence of record refutes the applicant's contention.
   
   b.  The evidence of record shows that when the applicant submitted his voluntary request for discharge for the good of the service he acknowledged that he may be discharged under other than honorable conditions.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he was informed he would receive an honorable discharge based on having served 18 months in Germany.  Thus, the evidence of record does not support the applicant's contention.

   c.  In view of the foregoing, the applicant's contentions are not sufficiently mitigating to warrant relief.

3.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

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)                                         AR20090015412



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ABCMR Record of Proceedings (cont)                                         AR20090015412



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