BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090018001 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states his alleged incident did not involve U.S. authorities.  He states he did not receive a fair trial in the German court system.  He also states he was informed his discharge would be upgraded after 3 years.

3.  The applicant provides no additional 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's military personnel records show he enlisted in the Regular Army on 18 April 1977.  He completed the training requirements and he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 13 December 1978, the applicant was assigned to Headquarters and Headquarters Battery, 1st Battalion, 30th Field Artillery in Germany.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 28 June 1979 for striking a female Soldier in the face with his fist
* 26 July 1979 for having a female in his billets room

5.  The court-martial charges preferred against the applicant were not available for review.

6.  On 23 December 1979, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, the applicant acknowledged he had been advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Veterans Administration benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
* understood if he departed absent without leave (AWOL), his request would be processed and he would be discharged even though he was absent


8.  The applicant's counsel countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

9.  On 3 January 1980, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

10.  The applicant's commander's endorsement to his request for discharge stated the applicant was being held in custody pending trial by German authorities for the charges of robbery and attempted rape.  The commander also stated the applicant had been charged by U.S. authorities of larceny of a stereo.  The commander recommended that the applicant be issued an Other Than Honorable Conditions Discharge Certificate.

11.  On 18 January 1980, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  In addition, his discharge would be accomplished upon completion of German court proceedings.

12.  The applicant requested that he be retained in the service until final disposition of the charges against him by a foreign government.

13.  On 1 December 1982, a priority port call was requested for the applicant after 14 December 1982.  This request stated the applicant had been in a German prison since September 1980 and he had an approved Chapter 10 discharge.

14.  On 17 December 1982, the applicant's status was changed to AWOL.  He had failed to report to the U.S. Army Separation Transfer Point at Fort Jackson, SC.

15.  On 20 December 1982, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 while in an AWOL status.  He had completed 2 years, 4 months, and 17 days of net service that was characterized as under other than honorable conditions.  He also had 1,173 days of lost time. 
16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation states a member who has committed an offense or offenses for which the authorized punishment includes 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.

18.  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.

19.  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.

20.  Army Regulation 635-200 states a Soldier may be separated without return to military control if he is AWOL after receiving notice of initiation of separation processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded because he did not receive a fair trial in the German court system and that he was told his discharge would be upgraded 
3 years after he was separated.


2.  The ABCMR has no jurisdiction over foreign courts.  

3.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the ABCMR requesting change in the discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

4.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  His request was administratively correct and in conformance with applicable regulations.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available records contain no evidence of procedural or other errors that would have jeopardized his rights.

6.  The applicant's actions in a foreign country certainly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's lost time due to being in civilian confinement and the fact that he failed to report to Fort Jackson upon return to the U.S. clearly show his service was unsatisfactory.

7.  Therefore, in view of the foregoing, there is no basis for upgrading his discharge to a general or honorable.

8.  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)                                         AR20090018001



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ABCMR Record of Proceedings (cont)                                         AR20090018001



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