IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007807 


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 undesirable discharge.

2.  The applicant states he got into a physical altercation with another service member.  He contends the altercation was initiated by the other service member but nothing was done to him.  However, he was given the option to go to prison or accept the undesirable discharge.

3.  The applicant provides no additional documents in support of this 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.  The applicant enlisted in the Regular Army on 31 May 1975.  He completed initial training and he was awarded military occupational specialty 11B (Infantryman).

3.  On 1 December 1975, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for missing movement on
29 November 1975 and for being absent without authority from the Aerial Port of Embarkation, Charleston Air Force Base, SC from 29-30 November 1975.

4.  On 30 June 1976, he accepted NJP for sleeping upon his post while posted as a guard on 17 June 1976.

5.  A DD Form 458 (Charge Sheet), dated 2 July 1976, shows that charges were preferred against him for committing assault upon another Soldier by striking him with a club with a means likely to produce grievous bodily harm.

6.  On 27 July 1976, after consulting with legal counsel, he 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.  In his discharge request he acknowledged that he understood by submitting a request for discharge he was admitting guilt of the charge against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed he understood he could receive an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate.  He was also advised and understood that this could make him ineligible for many or all Army and Veterans Administration benefits, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 17 August 1976, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 3 September 1976, he was discharged accordingly.

8.  The Army Discharge Review Board (ADRB) denied his request for a discharge upgrade on 26 January 1984.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

10.  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's contention that his undesirable discharge should be upgraded has been carefully considered.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.   The record shows that after consulting with counsel, he voluntarily requested discharge from the Army to avoid trial by court-martial.  His voluntary 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 administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

3.  The applicant's record of indiscipline includes NJP on two occasions and assault upon another Soldier with a means likely to produce grievous bodily harm.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100007807



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ABCMR Record of Proceedings (cont)                                         AR20100007807



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