IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007714 


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

2.  The applicant states he was the most improved Soldier in basic training and had one of the highest scores on the test for chemical specialist.  When he was shipped to the Federal Republic of Germany his commander praised him for his job in the unit.  However, a new commander arrived who told him he would get him out of the service.  He received nonjudicial punishment (NJP) for dating another man's wife.  Later, he was asked if he wanted to get out of the service and he answered yes, but not with a dishonorable discharge.  He was told his discharge would be upgraded in 6 months.  He found out that was not true.  He does not feel he did anything to receive an under other than honorable discharge.  He loved the U.S. Army.

3.  The applicant provides three letters from friends 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.  On 23 January 1979, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 54K (Chemical Operations Specialist).  He was subsequently assigned for duty in the Federal Republic of Germany.

3.  On 23 June 1979, the applicant was assigned to Battery B, 2nd Battalion, 57th Air Defense Artillery Brigade.

4.  On 1 April 1980, the applicant was advanced to private first class/pay grade E-3.

5.  On 18 June 1980, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful command from his superior commissioned officer and for failure to obey a lawful order from his first sergeant, his superior noncommissioned officer.

6.  On 19 August 1980, charges were preferred under the UCMJ for violation of:

	a.  Article 92 (two specifications) for violating a lawful general regulation by carrying a knife with a blade longer than three inches and a straight razor in a concealed manner,

	b.  Article 117 (one specification) for wrongfully using provoking words,

	c.  Artilce 128 (one specification) for assault on another Soldier by brandishing a knife, and

	d.  Article 134 (one specification) for wrongfully communicating a threat to injure another Soldier.

7.  On 9 September 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 8 December 1980, the separation authority approved the applicant's request for discharge and directed that he be issued a discharge under other than honorable conditions.  Accordingly, on 30 December 1980, the applicant was discharged.  He had completed a total of 1 year, 11 months and 8 days of creditable active military service.

10.  On 3 December 1981, the Army Discharge Review Board considered the applicant's request for an upgrade of his discharge.  The board determined that his discharge was proper and equitable and denied his request.

11.  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 trail by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 92, Article 128, or Article 134 for any one of the violations charged in the applicant's case includes a punitive discharge.

13.  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.

14.  The three letters of support provided by the applicant state, in essence, that they have known the applicant for many years.  He has experienced ups and downs, but is now at a point where he has begun to turn his life around.  He has learned that life is not all about him.  He cares about the welfare of others, especially seniors.  He has very good work habits and is very conscious of doing a good job.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to general under honorable conditions because he did not do anything to deserve an under other than honorable conditions discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  The applicant's record of good service is greatly diminished by the gravity of the court-martial charges that were preferred against him.  Furthermore, he has not provided any evidence or mitigating argument sufficient to warrant an upgrade of his discharge.

4.  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)                                         AR20100007714



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ABCMR Record of Proceedings (cont)                                         AR20100007714



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