IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025960 


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 under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states that he submitted a document detailing the circumstances surrounding his eventual acceptance of his discharge.  He adds that he was forced into accepting the discharge on the advice of his lawyer because of the mysterious malfunction of the video camera at the jail where the incident took place.  He believes that his discharge has essentially prevented him from gainful employment and the one incident should not scar him for life.  In the letter the applicant submitted with his application he states that after being involved in a fight with another Soldier in 1991, he was arrested by the military police (MP).  The applicant adds that after being arrested and still in handcuffs he was assaulted by three MP’s.  He was momentarily unconscious and he was transported to a military hospital where he received stitches to his head.  After returning to the hospital he was then told that he had a concussion.  After receiving a lawyer and returning to the MP station to review the tape he was told that the video tape was not working.  After discussing the likelihood of winning a court-martial case his lawyer informed him it would be better for him to take the UOTHC discharge and later petition for an upgrade, rather than take the chance of jail or receiving a dishonorable discharge.  The applicant adds that for the next 
6 to 8 years he was not allowed any medical treatment from the Department of Veterans Affairs (VA).  This event has seriously hampered his life and his potential to obtain employment.  He finally states that he has performed numerous community and family services and he believes that he has become a better person 
3.  The applicant provides four character reference letters.

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 13 October 1987 for a period of 3 years.  At the time of his enlistment he was 23 years old and he required a moral waiver for a civil arrest record.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank/grade he attained was specialist (SPC)/E-4.

3.  On 20 November 1990, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 21 November 1990, he reenlisted for a period of 3 years. 

4.  On 22 January 1991, the applicant received nonjudicial punishment for striking his superior noncommissioned officer (NCO).  The specific facts and circumstances regarding this NJP and the punishment imposed are not available for review.

5.  On 21 August 1991, court-martial charges were preferred against the applicant for:

* two charges of assault consummated by a battery
* resisting apprehension
* being disrespectful in language to his superior NCO

6.  The charges were referred to trial by a special court-martial empowered to adjudge a bad conduct discharge.

7.  On 16 September 1991, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service - in lieu of court-martial.  After consulting with counsel, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In his request for discharge he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge and he would be deprived of many or all Army benefits.

8.  On 18 September 1991, the appropriate 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 the issuance of an under other than honorable conditions discharge.

9.  On 21 October 1991, the applicant was discharged accordingly.  He completed 4 years and 7 days of creditable active service.

10.  On 30 July 1996, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

11.  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 UOTHC is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7b, states 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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  

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

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for VA benefits should be addressed to the VA.

4.  In view of the above, there is no basis for granting his 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)                                         AR20100025960



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ABCMR Record of Proceedings (cont)                                         AR20100025960



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