BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100023985 


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.  The applicant states he was not court-martialed and was in fact given the option to be released from active duty in lieu of nonjudicial punishment (NJP).  His understanding at the time was that his character of service was to be under honorable conditions.  He states that he was only 17 years old when he joined the Army with parental consent.  While in training he was a good Soldier and he followed all orders handed to him.  After training he was assigned to Fort Riley, KS and he subsequently served in Germany during a major exercise.  However, as a consequence of his socializing and drinking, he was involved in a fight with one of his friends which ultimately led to his discharge.  For this incident he was given a chance to get out of the Army and he understood he would be discharged with a general discharge.  He adds that he was recently diagnosed with a disease that necessitates medical benefits through the Department of Veterans Affairs.

3.  The applicant provides a neurological diagnosis report.

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's record shows he was born on 25 May 1962 and he enlisted in the Regular Army at nearly 18 years of age on 16 May 1980.  He held military occupational specialty 64C (Motor Transport Operator).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s record also shows he served in Germany from January 1982 to August 1982 and he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Grenade Bar, and the Army Service Ribbon.

4.  His records show he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on multiple occasions as follows:

* On 11 February 1981, for failing to obey a general regulation
* On 23 September 1981, for being absent without leave from 3 through       8 September 1981 and twice failing to go at the time prescribed to his appointed place of duty
* On 24 June 1982, for assaulting another Soldier

5.  On 11 August 1982, his immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against the applicant citing his prior misconduct of AWOL, assault, and violation of a regulation.  The immediate commander remarked the applicant had established a pattern of nonconformity to military discipline and military life.  He did not respond to counseling or punishment under the UCMJ and he did not possess the character for military lifestyle.  The applicant was provided an opportunity to submit a rebuttal but elected not do so.  His bar was ultimately approved by the appropriate authority.

6.  On an unknown date in July or August 1982, court-martial charges were preferred against the applicant for one specification of assault.  He was 20 years of age at the time.

7.  On 5 August 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.

8.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion by any person.  He also acknowledged he had been advised of the implications attached to it.  He indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

9.  On 11 August 1982, his immediate commander recommended disapproval of the discharge.  He indicated that approval of the applicant's request would have an adverse impact on the good order and discipline within the unit.  The charges required stronger action than administrative disposition.  Court-martial action would emphasize to others who may find themselves in similar circumstances the seriousness of this misconduct and act as an effective deterrent for further misconduct.

10.  On 11 August 1982, his intermediate commander also recommended disapproval of the discharge and remarked that the seriousness of the charges warranted trial by a court-martial.  Permitting the misconduct to be disposed of through administrative action would not be an effective deterrent and would not serve the good order and discipline.

11.  On an unknown date in August 1982, his senior commander concurred with the immediate and intermediate commanders and recommended disapproval of the discharge.

12.  On 16 August 1982, after considering the chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service - in lieu of court-martial in accordance with Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 25 August 1982.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued 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 with a characterization of service of under other than honorable conditions.  This form confirms he completed 2 years, 3 months, and 5 days of total active service with 5 days of time lost.

14.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

15.  He submitted a medical statement, dated 17 December 2009, from the University of Washington Medical Center, Seattle, WA, that states he has been diagnosed with Lou Gehrig Disease and has a life expectancy of 5 years.

16.  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 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.

17.  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’s contention that his discharge should be upgraded because he was not court-martialed and he was in fact given the option to be released from active duty in lieu of NJP was carefully considered; however, it was found to be without merit.  

2.  The evidence of record shows he was nearly 18 years of age at the time he enlisted in the Regular Army and he was 20 years of age at the time he committed his offense that led to his discharge.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in his records, and the applicant did not provide substantiating evidence, that shows his assault on another Soldier was the result of his age.

3.  His record shows he was charged with the commission of an offense 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  His post-discharge diagnosis of a terminal disease is unfortunate; however, it is not sufficiently mitigating to change the character of his service.  Based on his record of indiscipline, his service clearly did 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 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 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)                                         AR20100023985



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ABCMR Record of Proceedings (cont)                                         AR20100023985



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