BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100027495 


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 an honorable discharge.

2.  The applicant states he was placed in a military jail in Germany and after a few weeks he was released.  He was returned to duty with pay, deported from Germany, assigned to Fort Jackson, SC, and discharged from the Army.
He also states he:

   a.  was young and immature and he questions why he was discharged from the Army for the same charges that he was placed in jail for and then released;

   b.  requested reassignment to Fort Hood, TX, and he did nothing to be discharged for after he was released from jail;

   c.  was given a sealed envelope by a senior noncommissioned officer (NCO), told not to open it, and to deliver it to military authorities at Fort Jackson; and

   d.  told he could reenter military service 2 years after his discharge date.

   e.  He asserts he was improperly discharged.

3.  The applicant provides no additional evidence 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 for a period of 3 years on 10 September 1980.  At the time he was 19 years of age. Upon completion of training he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).

3.  The applicant served overseas in Germany from 5 March through
13 September 1981.

4.  On 20 August 1981, the applicant's company commander preferred court-martial charges against him for violation of the Uniform Code of Military Justice (UCMJ), Articles 90, 91, and 134, respectively, on 19 August 1981, for:

* disobeying a lawful command from his superior commissioned officer
* striking his superior NCO in the neck with his clenched fist
* wrongfully possessing some amount of marijuana
* breaking restriction

5.  Headquarters, 7th Engineer Brigade, Consolidated Justice Center [Germany], memorandum, dated 27 August 1981, subject:  United States v. [Applicant] (Additional Charges), provides facts and sufficiency of evidence relating to the applicant breaking restriction on 19 August 1981.  It shows the Assistant Staff Judge Advocate noted "[the applicant] was routinely searched at the [Military Police] Station prior to being put in the D-Cell."

6.  On 20 August 1981, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  He acknowledged he was guilty of the charges against him or of lesser-included offenses contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.

	b.  He was advised that he could submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were not submitted with his request.

7.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

8.  On 31 August 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to private (E-1).

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 September 1981 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He had completed 1 year and 6 days of net active service.

10.  The applicant's records do not contain any evidence that shows he was court-martialed.

11.  On an unspecified date, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  On 14 June 1982, after consideration of the applicant's military records and all other available evidence (that included the applicant's repetitive misconduct as manifested by unknown charges being preferred on 29 July 1981, coupled with the charges preferred on 20 August 1981), the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.
12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 90 for willfully disobeying a superior commissioned officer, Article 91 for insubordinate conduct toward an NCO, and Article 134 for crimes and offenses not capital.

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

	a.  Chapter 10 provides that a member who 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 3-7a, 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.

	c.  Chapter 3, paragraph 3-7b, provides that a general discharge under honorable conditions 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 contends his discharge under other than honorable conditions should be upgraded because he was young and immature at the time, and his discharge was improper because it was based on the same charges he was placed in jail for and then released.

2.  Considering the applicant satisfactorily completed training and was awarded MOS 76Y, his contention that he was young and immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows charges were preferred against the applicant on 29 July 1981.  While the specifics of the charges are not known, it is plausible that the applicant was placed in jail as a result of the charges and then later released because there is no evidence that the charges resulted in court-martial. Thus, the sincerity of the applicant's comments that he was placed in jail and then released is not in dispute.  However, records also show that charges were preferred against the applicant again on 20 August 1981, which apparently led to the applicant's voluntary request for discharge for the good of the service in lieu of trial by court-martial. 

4.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of his service was appropriate and equitable.

5.  The evidence of record shows the applicant disobeyed a lawful command from his superior commissioned officer, struck his superior NCO with his clenched fist, wrongfully possessed some amount of marijuana, and broke restriction.  In addition, the applicant completed only about 1 year of his 3-year enlistment commitment.  Thus, the evidence of record shows the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

6.  In view of all of the foregoing, there is no basis for granting 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)                                         AR20100027495



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100027495



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1