IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100007179 


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 to a general under honorable conditions discharge.

2.  The applicant states that he would like to receive medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation or Discharge from Active Duty), dated 22 August 1979, and a copy of a letter, dated 11 June 1979, from his former commanding officer.

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 records show he enlisted in the Regular Army on 2 November 1977 and held military occupational specialty 64C (Motor Transport Operator).  The highest rank/grade he attained during this period of military service was private first class/E-3.  He was assigned to Aberdeen Proving Ground, MD.

3.  The complete facts and circumstances of the applicant's misconduct, charge sheet, and ultimate separation are not available for review with this case. However, a previous review of his case by the Army Discharge Review Board (ADRB) on 2 October 1980 shows he was previously counseled for disrespecting a noncommissioned officer, being late to a detail, a civil offense of breaking and entering, being disorderly, possession of marijuana, being late for formation, and being late for duty.  He also accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  in May 1978 and in June 1979 for failure to repair and

	b.  in June 1979 for resisting apprehension by military police (MP), escaping lawful custody from MPs, destroying several pieces of linen and light fixtures, breaking a rear car window, assaulting another Soldier, striking at another Soldier with a broken bottle, communicating a threat to injure a sergeant, and communicating a threat to kill a military investigator.  His punishment consisted of a reduction to E-1, a forfeiture of half pay for 2 months, and 45 days of restriction.

4.  The ADRB's review also shows the following:

	a.  On 17 July 1979, court-martial charges were preferred against him for one specification each of willfully damaging a metal grate light cover by pulling from the ceiling, willfully and wrongfully damaging the windshield of a privately-owned vehicle, unlawfully striking a person on the head with his fist, wrongfully assaulting another Soldier by striking him in the face with his fist, and wrongfully communicating a threat to blow up an apartment.

	b.  On 1 August 1979, he requested discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  His immediate commander recommended approval of the discharge with an under other than honorable conditions discharge; however, his intermediate commander recommended his trial by a special court-martial empowered to adjudge a bad conduct discharge.

	c.  On 17 August 1979, the separation authority approved the request for discharge with the issuance of an under other than honorable conditions discharge.

5.  His record contains a properly-constituted DD Form 214 that shows he was discharged on 22 August 1979 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form also shows he completed 1 year, 9 months, and 21 days of creditable active service.

6.  On 2 October 1980, the ADRB denied his petition for an upgrade of his discharge.

7.  He submitted a copy of a letter, dated 11 June 1979, from his immediate commander to his mother wherein the immediate commander notified her of an incident involving the applicant and that he received appropriate medical care.

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

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded to a general under honorable conditions discharge.

2.  The applicant's record is void of the complete facts and circumstances that led to his voluntary discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 22 August 1979 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20100007179



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ABCMR Record of Proceedings (cont)                                         AR20100007179



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