IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100011889 


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 to an honorable discharge.

2.  The applicant states the basis for his discharge was an altercation between and officer and an enlisted man and the officer was the instigator.  He states he was unaware he could petition to have his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 30 April 1973.  He successfully completed training and by June 1974 had attained the rank/grade of specialist four (SP4)/E4 while assigned to Korea.

3.  According to a 10 September 1974 Statement of Personal History, on 
3 September 1974 the applicant was reduced from SP4/E-4 to private (PV2)/E-2 as a result of punishment under Article 15, Uniform Code of Military Justice (UCMJ), for burglary, larceny, and damaging non-military property.

4.  On 11 September 1974, the applicant was charged with communicating a threat, disrespect towards an officer, failure to repair, destruction of government property, and assault of an officer and noncommissioned officer.  On 7 October 1974, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, and the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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.

5.  The applicant indicated in his request for discharge that he understood if his discharge request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged that he understood 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

6.  Included with the applicant’s administrative separation packet was a statement from his unit commander.  In the statement the commander noted the applicant displayed violent behavior toward him on 7 September 1974, in both vulgar language and hitting him (the commander) in the arm as he attempted to deflect the applicant’s blows.  The commander noted the applicant had been reported to be taking barbiturates with beer over the course of several days and he had not reported to work in a week.  The commander noted when several other Soldiers attempted to subdue the applicant while he, the commander, summoned medical help, the applicant fled.  When the applicant returned he apologized to the commander and indicated he just wanted to get out of the Army.  The applicant then again erupted, displaying a violent temper and 


ultimately explained how much he hated the Army, how he wanted out, and how much he hated officers because they thought they owned the men.

7.  The applicant’s medical record contains a 10 September 1974 entry noting the applicant was having a disciplinary problem at his unit allegedly related to ongoing cannabis and barbiturate misuse and that he disliked authority figures.  His separation physical examination makes no mention of any mental health disorders.

8.  The separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge, issued an Undesirable Discharge Certificate, and reduced to the lowest enlisted grade.  He was discharged accordingly on 12 November 1974.  He had completed 1 year,
6 months, and 13 days of total active service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  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.  

11.  Army Regulation 635-200 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.  

12.  Army Regulation 635-200 also 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 request for upgrade of his undesirable discharge to an honorable discharge was carefully considered and determined to be without merit.

2.  The applicant's military service records show that he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial and he acknowledged guilt of the charges against him.

3.  The applicant's military service records show that he was counseled regarding separation under the provisions of Army Regulation 635-200, chapter 10, and the possible negative effects of this discharge.  There is no evidence that he indicated at that time that this action was in error or unjust, or that his admission of guilt was false.

4.  The applicant states his discharge was based on an altercation with an officer, which the officer instigated.  However, other than his own contention, there is no evidence which confirms his statement and the statement of his commander suggests otherwise.  The applicant's administrative separation was accomplished in compliance with applicable regulatory guidance with no indication of procedural errors that would jeopardize his rights.

5.  Inasmuch as the applicant was discharged based on his own admission of guilt, the reason and authority for discharge is correct as currently constituted.  Therefore, based on the available records, there is no basis to grant the relief requested.

6.  The applicant's military service records show that he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

7.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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 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)                                         AR20100011889



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ABCMR Record of Proceedings (cont)                                         AR20100011889



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