BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017953 


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 an honorable discharge.

2.  The applicant states, in effect, that he does not have any available evidence to support his application.

3.  The applicant does not submit any additional documents.

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 on 1 September 1977 for 3 years.  He completed basic combat and advanced individual training and was awarded 
military occupational specialty (MOS) 11B (Infantryman).  He was later awarded MOS 11H (Heavy Anti-Armor Weapons Crewman) as his primary MOS with MOS 11B as his secondary MOS.

3.  On 12 March 1979, the applicant was assigned to Combat Support Company, 1st Battalion, 501st Infantry, 101st Airborne Division (Air Assault) at Fort Campbell, KY.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a superior noncommissioned and for wrongful possession of an Armed Forces Liberty Pass.

5.  On 10 July 1980, court-martial charges were preferred against the applicant for the following violations of the UCMJ:

	a.  Article 81, UCMJ, for conspiracy to rob a Soldier by means of force and violence by choking the Soldier to gain entrance to his barracks room, assaulting him with a club to subdue him, robbing him, and then locking the Soldier in a wall locker on or about 6 July 1980;

	b.  Article 122, UCMJ, for stealing money ($70.00) from a Soldier by means of force and violence; and 

	c.  Article 128, UCMJ, for assaulting a Soldier and causing him bodily hard with a club; for assaulting a Soldier by pointing and brandishing a dangerous weapon (a pistol); and for choking a Soldier around the throat with his hand.

6.  On 16 July 1980, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he understood that if his discharge request was approved 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 (VA), and that 

he may be deprived of his rights and benefits as a Veteran under both Federal and state laws.

8.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and recommended issuance of an under other than honorable conditions discharge.

9.  On 24 July 1980, the separation authority approved the applicant's request for discharge for the good of the service and directed an under other than honorable conditions discharge.

10.  On 28 July 1980, the applicant was discharged accordingly.  He had completed 2 years, 10 months, and 28 days of creditable active service.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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.

13.  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.

14.  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.

15.  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 conspiracy to rob, robbery, and assault with a dangerous weapon or means likely to produce grievous bodily harm or death.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant was charged with multiple violations of the UCMJ to include assault with his hands, a club, and a pistol with the intent to steal money from a Soldier, a member of his unit.

2.  The applicant voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, in lieu of trial by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

3.  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.

4.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general, under honorable conditions discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _______________________
               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)                                         AR20090017953



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ABCMR Record of Proceedings (cont)                                         AR20090017953



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