IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022343 


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 under honorable conditions.

2.  The applicant states there was a fight that involved U.S. and British soldiers:  

   a.  One of the U.S. Soldiers, Joseph P---, a military policeman with the 536th Military Police (MP) Company, used a baseball bat on one of the British soldiers.  The bat that the Soldier used had the phrase "British Beater" written on it.
   
   b.  An investigation revealed the Soldier who was responsible for the crime.  The Soldier was convicted of aggravated assault/attempted murder.  He adds that after the Soldier's conviction, he personally escorted him to the jail in Mannheim, Germany.

   c.  His chain of command accused him of participating in the incident and he eventually decided that he just wanted to get out of the Army.  However, at the time, he had no idea how his discharge was going to affect his life.  He requests that his record be cleared of his unfavorable discharge which has ruined his life for the past 25 years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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.  On 19 May 1983, the applicant enlisted in the Regular Army for a period of
3 years.  Upon completion of training he was awarded military occupational specialty 95B (Military Police).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments) that he served overseas in Germany with the
536th MP Company from 29 October 1984 through 9 October 1985.

4.  On 27 June 1985, a Security Manager indicated the applicant's security clearance (along with the security clearances of six other individuals) had been suspended.  Based on a request from the Commander, 536th MP Company, he then requested that their security clearances be revoked pending review by the Central Clearance Facility.  

5.  On 16 July 1985, the Commander, 536th MP Company, reprimanded the applicant for engaging in an affray along with two other Soldiers of the unit which led to an on-duty MP patrol responding to the scene on 15 July 1985.  On 17 July 1985, the applicant responded to the commander's letter of reprimand and indicated that he elected not to make a statement.

6.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) or a request for discharge for the good of the service based on conduct triable by court-martial.

7.  The applicant was reduced from specialist four (E-4) to private (E-1) on
16 September 1985.


8.  Headquarters U.S. Army Regional Personnel Center, Grafenwoehr, Orders 213-2, dated 30 September 1985, as amended by Orders 220-1, dated 8 October 1985, assigned the applicant to the U.S. Army Separation Transfer Point, Fort Dix, NJ, for discharge on 11 October 1985.

9.  The applicant's DD Form 214 shows he was discharged on 11 October 1985 in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of a court-martial, with service characterized as under other than honorable conditions.  He had completed 2 years, 4 months, and 23 days of net active service this period.

10.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

   a.  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.
   
   b.  Chapter 3, 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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded because his chain of command accused him of participating in an incident, and he eventually decided that he just wanted to get out of the Army.  However, the discharge has ruined his life.

2.  Despite the absence of the applicant's request for separation or separation packet, the applicant acknowledges that his chain of command accused him of participating in an affray and that he decided to accept a discharge.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.

3.  Absent evidence to the contrary, it is presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering the facts of the case.

4.  Records show the applicant's security clearance was suspended pending revocation of his security clearance.  He was then issued a letter of reprimand by his company commander for being in an affray and he was reduced to private just 1 month prior to being discharged.  Moreover, the applicant completed only about 2 years and 5 months of his 3-year active duty obligation.  Thus, the applicant's overall quality of service during the period under review was not satisfactory and he is not entitled to a general discharge.

5.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100022343



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ABCMR Record of Proceedings (cont)                                         AR20100022343



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