IN THE CASE OF:	

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018647 


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 that it has been 26 years since the incident.  He has repented and feels that he is in a mature frame of mind now and asks forgiveness for his error.

3.  The applicant provides a copy of his DD Form 214 (Certification of Release or Discharge from Active Duty).

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 Regular Army, in the rank/grade of private first class (PFC)/E-3, on 7 August 1980, for 4 years.  He completed training and was awarded military occupational specialty 75C (Personnel Management Specialist).  He was advanced to the rank/grade of specialist four (SP4)/E-4 on 6 March 1981.  He served in Germany from
11 December 1980 to 6 December 1982.

3.  On 8 December 1982, a DD Form 458 (Charge Sheet) was prepared by the Commander, Headquarters and Headquarters Company, VII Corps in Germany.  He was charged with one specification of assaulting a male Soldier by striking him in the face with a closed fist with a force likely to produce grievous bodily harm on 4 December 1982 and one specification of assaulting a female Soldier by striking her in the face with a closed fist with a force likely to produce grievous bodily harm upon her to wit:  a broken jaw on 4 December 1982.

4. On 13 December 1982, the charge and its specifications were referred to trial by a special court-martial.

5.  On 16 December 1982, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He admitted that he was guilty of the charge against him and had no desire for further military service. He also acknowledged that he could be discharged under other than honorable conditions and furnished an under other than honorable 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.

6.  On 16 December 1982, his company commander recommended approval of his request and recommended the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The company commander stated that the applicant’s actions were of such a serious nature that his immediate elimination from the service was desirable.  The two acts of assault caused serious personal injury and pain to two Soldiers of that unit.  The company commander opined that the discharge and its ramifications sufficiently dealt with the incidents in question.

7.  On 16 December 1982, his higher headquarters commander recommended approval of his request based on the two acts of assault that caused serious personal injury and pain to two Soldiers of that unit.  The higher headquarters commander recommended the issuance of an under other than honorable conditions discharge.

8.  On 20 December 1982, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of an under other than honorable conditions discharge.

9.  He was reduced to the rank/grade of private (PV1)/E-1 on 20 December 1982.

10.  He was accordingly discharged on 6 January 1983, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He was credited with 2 years and 5 months of net active service.

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 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, of that regulation 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.  Notwithstanding his contention that it has been 26 years since the incident, he has submitted no evidence to mitigate his charge.  His company commander stated that his actions were of such a serious nature that his immediate elimination from the service was desirable.  His immediate and intermediate commanders stated that his two acts of assault caused serious personal injury and pain to two Soldiers of that unit and the discharge and its ramifications sufficiently dealt with the incident in question.

3.  The evidence shows his charge and specifications were referred to trial by a special court-martial.  At the time, he requested to be discharged in lieu of facing a court-martial and admitted guilt to the stipulated charge and specifications.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongly charged.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.

4.  The applicant 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 under honorable conditions or an honorable discharge.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

6.  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.

7.  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)                                         AR20090018647



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ABCMR Record of Proceedings (cont)                                         AR20090018647



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