IN THE CASE OF:	  

		BOARD DATE:	    2 September 2010

		DOCKET NUMBER:  AR20100008064 


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 reconsideration of the Board's denial of his previous request for an upgrade of his under other than honorable conditions discharge to an honorable discharge or at least a general discharge.

2.  The applicant states at the time of his enlistment he was granted a waiver for forgetting to divulge a prior eye injury.  He states he had problems in Germany where the commander just wanted to get rid of him so he contends he was, in effect, discharged for fraudulent enlistment due to his eye condition.

3.  The applicant provides three letters of support.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090014235, on 21 January 2010.

2.  The three letters of support provided by the applicant are new evidence, which warrants consideration by the Board.


3.  The applicant's record shows he enlisted in the Regular Army on 19 May 1977.  He completed initial entry training and he was awarded military occupational specialty 94B (food service specialist).  The highest rank/grade he attained was private (PV2)/E-2.

4.  On 23 March 1978, he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his place duty without authority on 17 March 1978.

5.  On 22 August 1978, he accepted NJP for participating in a breach of peace by engaging in pushing and wrestling with another Soldier in his unit and for disorderly conduct on or about 29 July 1978.

6.  A DD Form 458 (Charge Sheet), dated 25 November 1978, shows court-martial charges were preferred against him for:

	a.  willfully and wrongfully destroying food valued at $1,074.35, the property of the U.S. Government;

	b.  willfully and maliciously setting fire to a walk-in cooler, the property of the U.S. Government;

	c.  unlawfully striking a private in the face with his fist;

	d.  unlawfully entering the 240th Consolidated Dining Facility, the property of the U.S. Government, with the intent to commit a criminal offense; and

	e.  wrongfully communicating a threat to another Soldier to injure him.

7.  On 9 January 1979, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial; the effects of an under other than honorable conditions discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10; and of the rights 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.  In his request for discharge, he indicated he understood that by submitting the discharge request he was acknowledging he was guilty of the charge(s) against him or of a lesser included offense therein which also authorized the imposition of a bad conduct or dishonorable discharge.


8.  In his request for discharge, he also acknowledged that he understood 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.  He further indicated he understood that he could encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

9.  On 29 January 1979, the separation authority approved his request for voluntary discharge and directed issuance of an under other than honorable conditions discharge.

10.  Accordingly, on 5 March 1979, he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of conduct triable by court-martial, with issuance of an under other than honorable conditions discharge.  His DD Form 214 (Report of Separation from Active Duty) shows he completed a total of 1 year, 9 months, and 14 days of active service with 3 days lost under Title 10, U.S. Code, section 972.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention that he was discharged for a fraudulent enlistment, the applicant was charged with willfully and wrongfully destroying food valued at $1,074.35, setting fire to a walk-in cooler, unlawfully entering a dining facility with the intent to commit a criminal offense, wrongfully communicating a threat to another Soldier to injure him, and unlawfully striking a private in the face with his fist.  He also accepted NJP for being absent without proper authority and for participating in a breach of peace by engaging in pushing and wrestling with another Soldier in his unit and for disorderly conduct.

2.  After consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The separation authority approved his request and appropriately directed that he receive an under other than honorable conditions discharge which was consistent with regulatory policy in effect at the time and accurately reflected his overall record of service.

4.  His post-service conduct was taken into consideration but, given the seriousness of the offense, his military service is appropriately characterized.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief for an upgrade of his discharge to either an honorable or a general discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090014235, dated 21 January 2010.



      __________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)                                         AR20100008064



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)