IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021290 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he suffers from high blood pressure and other illnesses and he needs his discharge upgraded in order to qualify for government medical benefits.

3.  The applicant provides no additional documentary evidence 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 had prior honorable service in the U.S. Army National Guard and the Army National Guard of New Jersey from 15 March 1976 through
27 April 1979.

3.  The applicant enlisted in the U.S. Army Reserve on 27 December 1979.  On 
8 January 1980, he enlisted in the Regular Army for a period of 4 years.  He was assigned to Company A, 1st Battalion, 48th Infantry, 3rd Armored Division in Germany on 25 January 1980.

4.  On 17 October 1980, charges were preferred against the applicant for, by means of force and violence, stealing from a U.S. Army Soldier, 80 Deutsche Marks of a value of about $44, and committing an assault upon the Soldier by severely beating and kicking him, thereby intentionally inflicting grievous bodily harm upon him.

5.  On 7 January 1981, 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.

	a.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, and that he may be deprived of many or all Army benefits.  It also states that he may be ineligible for many or all benefits administered by the Veterans Administration, 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 because of a discharge under other than honorable conditions.  It further states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.

   b.  The applicant elected not to submit statements in his own behalf.
   
6.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a characterization of service of under other than honorable conditions.

7.  On 5 February 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, with a character of service of under other than honorable conditions.  

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 10 March 1981 in accordance with Army Regulation 635-200, chapter 10, for the good of the service for conduct triable by court-martial, with service characterized as under other than honorable conditions.  At the time he had completed 1 year, 2 months, and 3 days of net active service this period.
   
9.  On 19 March 1981, 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 upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 16 December 1982, the ADRB, after careful consideration of the applicant's 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.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 128 for aggravated assault with a means likely to produce bodily harm.

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

   a.  Chapter 10 provides 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.

   b.  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 contends his under other than honorable conditions discharge should be upgraded because he suffers from high blood pressure and other illnesses and that he would like to qualify for government medical benefits.
2.  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 far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

3.  As a matter of information, the ABCMR does not upgrade an individual's discharge solely to enhance eligibility for veteran's benefits.  Therefore, there is no basis for granting the applicant's requested relief.

4.  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)                                         AR20090021290



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ABCMR Record of Proceedings (cont)                                         AR20090021290



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