IN THE CASE OF:	  

		BOARD DATE:	    2 September 2010

		DOCKET NUMBER:  AR20090021216 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he was 19 years old when he entered active duty and he had a pretty good record of proficiency throughout most of his military service:

   a.  He acknowledges two incidents of excessive consumption of alcohol that resulted in him receiving nonjudicial punishment (NJP) in November 1975 and January 1976.

   b.  He states the incident that led to his discharge occurred when he returned to his barracks somewhat intoxicated.

       (1)  His roommate (Private K------) had previously harassed him, and tried to start fights with him on several occasions, and even pulled out a set of nunchucks and to threaten him.

       (2)  On the night in question, Private K------ threatened him and they exchanged blows.  Private K------ was injured and received stitches.

       (3)  He states another Soldier (Private R-----) witnessed the altercation, but was not given the opportunity to support the applicant with a statement.  He adds that Private R----- would have been able to provide more details of what had taken place.
   
       (4)  He concludes he was treated unfairly and as a result, charges were then preferred against him.

   c.  He states the incident that led to his discharge does not even appear to be in the record and there seems to be a cover-up due to a failure to fully investigate the matter.  He adds, the two previous minor infractions for which he received NJP did not constitute a pattern of misconduct.

   d.  He states he was given the option of either accepting the charges and going to a court-martial or requesting a discharge.  He adds he did not have a full understanding of what was happening to him and he was not fully advised of all of his options.

3.  The applicant provides copies of his DD Form 4 (Enlistment Contract - Armed Forces of the United States), DA Form 2-1 (Personnel Qualification Record), three DA Forms 2627 (Records of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]), DD Form 214 (Report of Separation from Active Duty), and two character reference letters.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an equitable review of the applicant's contentions that the incident that led to his separation was not fully investigated.

2.  Counsel states that after a careful review of the evidentiary record, the American Legion opines that the issue raised on the applicant's DD Form 149 amply, or advance the applicant's contention.  Counsel adds the American Legion's express purpose is to aid the petitioner in the proper resolution of any error or injustice raised.

3.  Counsel provides no additional documentary evidence in support of the applicant's 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 enlisted and in the Regular Army on 25 June 1974.  At the time the applicant was 19 years of age.  Upon completion of training he was awarded military occupational specialty 11E (Armor Crewman).

3.  The applicant's DA Form 2-1 shows he attained the rank of private first class (PFC) on 1 July 1975, and that he was awarded the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle (M-16) Bar.

4.  On 25 November 1975, the applicant received NJP under Article 15, UCMJ, for being drunk and disorderly in the barracks on 22 November 1975.  

5.  On 3 February 1976, the applicant received NJP under Article 15, UCMJ, for resisting lawful apprehension by armed forces policemen and being disorderly in a public place while in uniform on 10 January 1976.  His punishment consisted of reduction to private (E-2) (suspended for 90 days) and forfeiture of $104.50 pay for 1 month.

6.  On 9 April 1976, the applicant received NJP under Article 15, UCMJ, for, striking a superior noncommissioned officer who was then in the execution of his office by hitting him in the body with his fists on 7 March 1976.  

7.  A Statement by Private Mladen K-----, dated 13 May 1976, indicates he was in bed when the applicant entered the barracks and stated, "I am drunk and I feel good" and demanded a pack of cigarettes from him.  Private K------ states he complied with the applicant's demands in order to avoid a fight, but the applicant began to kick and punch him:

   a.  He describes how he was able to escape to the latrine, but the applicant followed him there and resumed punching him in the face.

   b.  He states that after the applicant left, he left the building to report the incident to Second Lieutenant (2LT) G--------.

   c.  He then went to the dispensary to get stitches for his bleeding eyebrow.

8.  A Statement by Private Ronald J. R-----, dated 13 May 1976, indicates he was in bed when the applicant entered the barracks late on Friday, 7 May 1976.  The applicant had been drinking and he woke Private K------ up for a cigarette, and Private K------ gave the applicant a pack of cigarettes.  The applicant continued to talk to Private K----- and this led to the applicant hitting Private K------.  Private 
K------ left the room and the applicant followed him.

   a.  About 10 minutes later, the applicant returned and told him to tell
2LT G-------- that Private K------ had gotten his nunchucks out and tried to hit him [the applicant.]

   b.  2LT G--------- came to the barracks and talked to Private R------ while the applicant was present.  Private R------ states "I know what would have happened if I didn't tell 2LT what [the applicant] wanted to hear.  Then we went down to the orderly room and wrote statements on what happened and he [the applicant] was right over my shoulder watching every word I put down."

9.  On 8 June 1976, charges were preferred against the applicant under the UCMJ for violation of Article 128, for assaulting Specialist Four Rosario P. B------, on 4 June 1976, by unlawfully striking him with his fists about the face.

10.  On 14 June 1976, the applicant consulted with legal counsel and voluntarily requested a 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

   a.  He was afforded the opportunity to consult with counsel.  He was fully advised of the nature of his rights under the UCMJ; the elements of the offense with which he was charged; the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if found guilty.

   b.  He was advised he may be issued an undesirable discharge, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), 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 if he were issued an undesirable discharge.

   c.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were submitted with his request.

       (1)  The applicant provided his personal assessment of his rehabilitation potential by stating, "[n]o, because no one can get along with just everybody in the service."  He added, "I feel that I should receive an honorable discharge because of my attitude and my working porformance [sic] within the past
2 years."

       (2)  The applicant indicated in a statement provided to the separation authority that he had contributed to the military readiness of the unit by consistently performing his duties in an outstanding manner.  He also provided a summary of the recognition he had received from his superiors over the course of his military service.  He requested that the separation authority grant him an honorable discharge.

11.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

12.  On 9 July 1976, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  

13.  The applicant's DD Form 214 shows he was discharged on 16 July 1976 in accordance with the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  At the time he had completed 2 years and 22 days of net active service this period.

14.  On 30 December 1978, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his undesirable discharge.  On 1 August 1979, the ADRB, after consideration of the applicant's request, military records, and all other available evidence, determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

15.  In support of his request, the applicant provides two character reference letters.

   a.  Mr. Robert B----, Field Service Manager, Securitas Security Services, states that the applicant has been employed with the company since February 2007.  He also states that the applicant is a very dependable security officer and he ensures the policies and procedures are met.

   b.  Reverend Jeff F------- states he has known the applicant for 4 years and has found him to be honest, loyal, dependable, and self-motivated.  He adds that the applicant and his wife are faithful in their church attendance and he highly recommends the applicant.

16.  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 128 for assault.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life if an undesirable discharge was issued to him.  

   b.  Chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that his undesirable discharge should be upgraded to a general discharge under honorable conditions because the applicant had a good record of proficiency through most of his military service, he did not display a pattern of misconduct, he was treated unfairly and he did not have a full understanding of what was happening to him, and he was not fully advised of all of his options.

2.  Records show the applicant received NJP on three different occasions for being drunk and disorderly, being disorderly and resisting apprehension by armed forces policemen, and striking a noncommissioned officer.  The evidence also shows the applicant was involved in an altercation with his roommate on
7 May 1976.  Thus, the evidence of record clearly shows a pattern of misconduct.

3.  Records show that charges were preferred against the applicant for assault against a Soldier on 4 June 1976.  In addition, the evidence of record shows the applicant was not subjected to coercion with respect to his request for discharge; he was afforded the opportunity to consult with counsel; he was fully advised of the nature of his rights under the UCMJ; the elements of the offense with which he was charged; the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if found guilty.  Thus, the evidence refutes the applicant's contention that he was treated unfairly and he did not have a full understanding of what was happening to him, and that he was not fully advised of all of his options.

4.  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 offense that led to his discharge outweighs any positive aspects of his overall record of service. Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

5.  The character reference letters regarding the applicant's post service conduct were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.

6.  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.  Therefore, in view of all 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)                                         AR20090021216



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ABCMR Record of Proceedings (cont)                                         AR20090021216



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