IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100021577 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states:

* he was minding his own business when he was attacked in his bunk
* it was racially motivated due to his Hispanic background
* he stabbed the assailant in self defense
* he was court-martialed and his court-martial was overturned by a higher court because his actions were in self defense
* the error is that through no fault of his own he was attacked and he defended himself from this racially motivated violent act against him
* he was unfairly court-martialed
* when the higher court overturned the court-martial, he was so frustrated he just wanted to get out of the service and he accepted the discharge under other than honorable conditions

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) 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.  The applicant enlisted in the Regular Army on 27 April 1976 for a period of 3 years.  He completed his training and was awarded military occupational specialty 12B (combat engineer).

3.  On 14 January 1977, he was convicted by a general court-martial of committing an assault upon a private first class by stabbing him with a knife and thereby intentionally inflicting grievous bodily harm upon him (deep cuts in the chest, side, and back) and being absent without leave (AWOL) from 26 October 1976 to 2 November 1976.  He was sentenced to be reduced to E-1, to be confined at hard labor for 5 years, and to forfeit $200.00 pay per month for 60 months.  On 10 March 1977, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 30 months, forfeiture of $200.00 pay per month for 30 months, and reduction to E-1.

4.  On 26 September 1977, the findings of guilty and the sentence were set aside and a rehearing was ordered.

5.  On 23 December 1977, the applicant consulted with counsel and 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 - Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood that he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

6.  On 24 January 1978, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

7.  He was discharged under other than honorable conditions on 1 February 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 9 months and 26 days of creditable active service with 339 days of lost time.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  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.

10.  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.

11.  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.  His contentions the attack was racially motivated, his actions were in self defense, and he was unfairly court-martialed relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in the rehearing/appellate process.  However, he voluntarily requested discharge in lieu of a rehearing.

2.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  His brief record of service included a 7-day AWOL period and a serious offense (assaulting a Soldier by stabbing him with a knife and thereby intentionally inflicting grievous bodily harm upon him) for which court-martial charges were preferred.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge 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 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)                                         AR20100021577



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ABCMR Record of Proceedings (cont)                                         AR20100021577



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