IN THE CASE OF:	

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090016382 


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 his under other than honorable conditions discharge be upgraded to a general or honorable discharge.

2.  The applicant states that he has two other honorable discharges.  He was under the stress of a divorce and was drunk when the assault happened.  He has received treatment for the past 30 years of alcohol and drug abuse and he has changed. 

3.  The applicant provides no additional documentation in support of his request.

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 records show he enlisted in the Washington Army National Guard (WAARNG) in pay grade E-1 on 11 April 1975.  He entered on active duty for training (ADT) on 2 July 1976 and was honorably released from ADT on 31 October 1976.  He was honorably separated from the WAARNG in pay grade E-3 on 13 February 1977, for the purpose of enlisting in the Regular Army.

3.  The applicant enlisted in the Regular Army in pay grade E-2 on 14 February 1977, for 4 years.  He was promoted to pay grade E-4 on 1 May 1978.  He served in Panama from 24 March 1977 to 20 March 1979 and in Germany from 6 December 1980 to 18 August 1981.  

4.  On 5 June 1981, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for intentionally cutting his wrists for the purpose of avoiding duty on 7 March 1981.  The punishment included a reduction to pay grade E-1, a forfeiture of $250.00 pay per month for two months, and 45 days extra duty and restriction.  He did not appeal the punishment.

5.  On 6 June 1981, a Bar to Reenlistment was initiated against the applicant.

6.  In June 1981, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10.  In doing so, he acknowledged that the following charges (his records do not contain a copy of the DD Form 458 (Charge Sheet)) had been preferred against him, each of which authorized the imposition of a bad conduct of dishonorable discharge:  one specification each of communication of a threat, being drunk and disorderly, being disrespectful in language toward a non-commissioned officer (NCO), disobeying an order from an NCO, and assault; and two specifications of assaulting an NCO.  He also acknowledged that he had not been coerced with respect to his request for discharge.  He further acknowledged that he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration. He waived his rights and elected not to submit a statement in his own behalf.

7.  In June 1981, the applicant’s unit commander and battalion commander recommended approval of the applicant's request.  The unit commander stated that rather than tie up the military court system with the charges pending against the applicant, it was in the best interest for both the military and the service member that he be discharged under the provisions of chapter 10, Army Regulation 635-200.  
8.  The battalion commander stated that the applicant had intentionally inflicted self-injury prior to 10 March 1981 on two separate occasions by cutting his wrists. The applicant had demonstrated a poor attitude towards his military duty, had been involved in several incidents stemming from alcohol abuse, and had not responded to counseling efforts of his supervisors and the CDAAC (the Community Drug and Alcohol Abuse Clinic) Program.  The battalion commander also stated that the alleged offenses were serious and the victim indicated that the accused (the applicant) apologized to him the day after the incident and expressed regret concerning his actions.  Nevertheless, the applicant’s conduct was reprehensible and according to his supervisors, he possessed no rehabilitative potential to effectively carry out the responsibilities of a Soldier.  The battalion commander recommended the issuance of an under other than honorable conditions discharge certificate. 

9.  On 28 July 1981, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued to him and that he be reduced to pay grade E-1.

10.  The applicant was discharged in pay grade E-1 on 20 August 1981, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He was credited with completing 4 years, 6 months, and 7 days of net active service during the period under review.

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

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had 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.  An under other than honorable conditions discharge was normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.
14.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant was charged with one specification each of communicating a threat, being drunk and disorderly, being disrespectful in language toward an NCO, disobeying an order from an NCO, and assault; and two specifications of assaulting an NCO.  He requested a discharge in lieu of facing court-martial charges.  The applicant’s battalion commander stated, in effect, that the applicant had intentionally inflicted self-injury upon himself on more than one occasion, had demonstrated a poor attitude towards his military duty, had been involved in several incidents stemming from alcohol abuse, had not responded to counseling efforts of his supervisors and the CDAAC Program, and his conduct was reprehensible.   

3.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly based on the charges.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  

4.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request. 

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)                                         AR20090016382





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ABCMR Record of Proceedings (cont)                                         AR20090016382



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