IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100014602 


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 discharge to honorable. 

2.  The applicant states counsel did not properly represent him and he was coerced into choosing a chapter 10 discharge from the U.S. Army.

3.  The applicant did not provide any supporting documents with 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.  The applicant enlisted in Regular Army on 8 July 1977 for a 4-year period.  He completed his initial entry training and he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  The applicant's service record reveals a history of accepting five nonjudicial punishments (NJP) imposed under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* failure to go to his appointed place of duty on 7 March, 9 March, 1 May, 2 May, 6 June and 8 June 1978
* absent without leave (AWOL) from 5 May to 12 May 1978
* AWOL from 16 July to 20 July 1978

4.  On 12 October 1978, court-martial charges were preferred against the applicant for striking a superior noncommissioned officer (NCO) and failing to obey multiple lawful orders. 

5.  On 1 November 1978, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

6.  The applicant was medically evaluated on 5 December 1978.  He was found medically qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He also met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  

7.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial and directed issuance of an under other than honorable discharge.

8.  The applicant was discharged accordingly on 12 December 1978.  The DD Form 214 issued at the time confirms he completed 1 year, 4 months, and 22 days of total active service and that his service was characterized as under other than honorable conditions.  He had 13 days of lost time under the provisions of Title 10, U.S. Code, section 972.

9.  On 8 March 1982, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.  That board determined his discharge was proper and equitable with his discharge properly reflecting his service characterization as under other than honorable conditions.

10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for striking a superior NCO includes a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 3 years confinement, reduction to the lowest enlisted grade, and total forfeiture of all pay and allowances.  For failure to obey lawful orders, the maximum punishment includes a bad conduct discharge, confinement for 6 months, reduction to the lowest enlisted grade and total forfeiture of all pay and allowances.

	b.  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.

	c.  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.

	d.  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 discharge should be upgraded because counsel did not represent him and he was coerced into choosing a chapter 10 discharge in lieu of trial by court-martial. 

2.  While a Soldier, the applicant was charged under the UCMJ for striking a superior NCO and failing to obey multiple lawful orders.  These acts are a violation of the UCMJ with a maximum punishment of confinement for 3 years, forfeiture of pay and allowances, reduction to the lowest enlisted grade, and a dishonorable discharge or bad conduct discharge.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His records do show appropriate legal authority counseled him.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel. 

5.  Therefore, there is no basis for upgrading of the applicant's under other than honorable conditions 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)                                         AR20100014602



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ABCMR Record of Proceedings (cont)                                         AR20100014602



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