BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100021683 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  He states, in effect, while stationed at Fort Sill, OK, he was placed on a special duty assignment due to a tornado that had swept through the installation.  While performing his duties, he accidentally bumped a rope that was supporting a gravel hoist on the roof of the building.  As a result, the gravel bucket which was left on the edge of the roof fell approximately 40 feet from the roof and onto his right knee, pinning his knee to a pile of gravel.

3.  He went to the emergency room and, upon his release, he remained on the special duty assignment and was given a physical profile.  He contends he did not receive the proper medical treatment.  He returned to his unit.  A few days later his profile was removed, and he fell out of a battalion run.  He contends he was ridiculed and humiliated by his superiors, and he was given extra duties as a result. 

4.  He states he was a model Soldier prior to all the humiliation and ended up going absent without leave (AWOL) to his home of record, which was about 40 miles from Fort Sill.  He believes an upgraded discharge will give him a fair opportunity to achieve his goals in life.  

5.  He did not provide any additional evidence.  


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.  His record shows he enlisted in the Regular Army on 6 October 1981.  After completion of basic combat and advanced individual training, he served in military occupational specialty 15E (Pershing Missile Crewmember).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 35 (Record of Assignments) he was assigned to Battery A, 3rd Battalion, 9th Field Artillery, Fort Sill, OK on 29 January 1982.  On 2 July 1982, he was placed on a special duty assignment with the same unit.  

4.  His military medical records contain documents which show he was initially treated for an injury to his right knee on 26 June 1982.  He sought medical treatment for the same injury again in July 1982 and he was given a 2-week temporary physical profile on 2 August 1982. 

5.  Item 35 of his DA Form 2-1 also shows he went AWOL on 4 February 1983 and was dropped from the rolls on 5 March 1983.

6.  His record contains a DD Form 458 (Charge Sheet), dated 10 May 1983.  This form shows charges under the Uniform Code of Military Justice (UCMJ) were preferred against him for going AWOL from 4 February to 9 May 1983.

7.  On 11 May 1983, he voluntarily submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10.  Prior to completing his request, he consulted with his appointed attorney, who advised him of his rights.  The applicant stated:

   a.  he was making the request of his own free will and he had not been subjected to coercion whatsoever by any person;
   
   b.  he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense that allowed the imposition of a bad conduct or a dishonorable discharge;
   
   c.  he did not desire further rehabilitation or to continue service in the military;
   
   d.  he understood that if his request was accepted he could be discharged under conditions other than honorable and he understood the effects of an under other than honorable conditions discharge;
   
   e.  he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including many or all benefits administered by the Veterans Administration, and he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge;
   
   f.  he understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and
   
   g.  he was advised he could submit any statements he desired to accompany his request for discharge; however, he did not submit any. 
   
8.  His immediate commander endorsed his request for discharge and stated the applicant had become disillusioned with the military and rehabilitation efforts were futile.  

9.  On 9 June 1983, his request for discharge in lieu of trial by court-martial was approved by the general court-martial convening authority.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, with an "Under Other Than Honorable Conditions Discharge," in the rank and pay grade of private, E-1, on 20 June 1983.  He had completed 1 year, 5 months, and 11 days of active service and 
2 months and 27 days of prior inactive service.  He had 94 days of lost time due to being AWOL. 


11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

12.  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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

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.  His request to upgrade his under other than honorable conditions discharge to a general discharge was carefully considered; however, it is not supported by the evidence of record. 

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  He contends he was a model Soldier prior to the ridicule and humiliation he faced due to his injuries and, as a result, he went AWOL.  To the contrary, his immediate commander noted the applicant had become disillusioned with the military and rehabilitation efforts were futile. 

3.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  His chain of command supported his request and, accordingly, he was discharged.

4.  The evidence shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

5.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of this prior to requesting a discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  In view of the foregoing, there is no basis to grant the 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)                                         AR20100021683



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ABCMR Record of Proceedings (cont)                                         AR20100021683



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