BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100027851 


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 and a change to the reason for separation.

2.  The applicant states his command denied his request to return home for the funeral of the last member of his family, his grandmother, or to call home.  He states that following this his command took his medication for his damaged knee away from him.  He requested to talk to someone because he couldn't deal with the pain.  He states the division psychiatrist informed his command that he was unfit for fighting and should be medically discharged under chapter 14.  He also states he was ridiculed by his chain of command and was told on numerous occasions that he should die or be shot before he got to go home.  He was forced to go on patrols without a weapon and body armor and sleep in a room that the Taliban used to burn human bodies in.  He also states that Lieutenant Colonel L____, the head of physical therapy, told his first sergeant (1SG) that he was unfit to deploy, but was deployed anyway with his unit.   He was forced to sign numerous papers, including his discharge papers, without anyone on his side present.  After leaving the Army he continued helping as many people as he could.  He works as a contracted protection officer during disasters and helps people who have lost everything in floods and hurricanes.  He further states he wishes he had been given a chance to finish the last 4 months of his contract in the Army.

3.  The applicant provides his achievement papers, knee injury documents, pictures, and a self-authored letter 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 4 years on 8 May 2001.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (infantryman).  The highest grade the applicant attained was private first class/pay grade E-3.

3.  On 17 June 2003, charges were preferred against the applicant for three specifications of assault on two noncommissioned officers in which he locked and loaded his weapon and pointed it to the head and back of Staff Sergeant W____ and to the back of 1SG R____.

4.  On 25 June 2003, the applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10 (Request for Discharge 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.

	a.  He was afforded the opportunity to consult with counsel.  He was advised he might be discharged under other than honorable conditions, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	b.  He was advised he could submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

5.  The company commander and brigade commander recommended approval of the requested discharge; however, the battalion commander recommended disapproval of the request.

6.  On 5 August 2003, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, with a character of service of under other than honorable conditions.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 29 September 2003 in accordance with chapter 10, Army Regulation 635-200, in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He completed 2 years, 4 months, and 22 days of net active service.

8.  On 31 July 2007, the Army Discharge Review board denied the applicant's request for upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge would normally be given to an individual who was discharged for the good of the service.

	b.  Army Regulation 625-200, 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.  Army Regulation 625-200, 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 contends that his discharge under other than honorable conditions should be upgraded to honorable.

2.  His records show he was charged with three specifications of assault in which he locked and loaded his weapon and pointed it to the head and back of two noncommissioned officers.  These offenses are punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.

3.  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 rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either honorable or general.

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)                                         AR20100027851



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ABCMR Record of Proceedings (cont)                                         AR20100027851



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