IN THE CASE OF:	  

		BOARD DATE:	    9 June 2011

		DOCKET NUMBER:  AR20100028812 


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 that his discharge be upgraded to general under honorable conditions. 

2.  The applicant states he liked the Army, excelled in the physical training, and loved his job as an administrative specialist.  One day in the mess hall he got into an altercation with another Soldier.  They had a history of confrontation stemming from a football game.  The white Soldier and his fellows stopped at their table where they were all black and a fight ensued.  During the melee he picked up and pocketed a knife that someone had dropped.  He was arrested at work because the white Soldier told an officer that he had tried to cut him.  He had no idea where the knife actually came from, but he was scared of being tried by court-martial and sent to Fort Leavenworth.  So, he took the easy way out and requested discharge.  

3.  The applicant provides no documentation to substantiate his request.

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 26 June 1975.  He completed training and was stationed at Fort Hood, Texas for about a year.  On 24 September 1976 he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for aggravated assault by pointing a pistol at a specialist four and violation of a lawful general order by keeping a privately owned pistol in his wall locker.

3.  He was transferred to Germany and arrived on 21 January 1977 where he was advanced to private first class on 1 July 1977.

4.  Court-martial charges were apparently preferred under the UCMJ.  On 
19 October 1977 the applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense or a lesser included offense for which a punitive discharge was authorized.  He also acknowledged that he would receive an under other than honorable conditions (UOTHC) discharge and that he understood that he would be deprived of many or all Army benefits and that he might be ineligible for veterans benefits administered by the Veterans Administration (VA).  He stated that he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated that he had received legal advice but that the request had been made voluntarily and that it reflected his own free will.

5.  The company commander recommended disapproval.  He noted that this was the applicant's second instance of assault.  He remarked that the applicant had "continually manifested a grudging attitude toward the performance of his duties."
He recommended the applicant be tried by a court-martial empowered to adjudge a punitive discharge.

6.  The staff judge advocate noted that the case did not involve illegal drugs and that special provisions required by a 1974 legal decision did not apply.  The upper level of the chain of command recommended approval of the request and separation with a UOTHC discharge.  The separation authority approved those recommendations and, on 14 November 1977, the applicant was so discharged.  


7.  On 1 November 1979 the Army Discharge Review Board (ADRB) considered the applicant's request to upgrade the discharge.  The applicant submitted a statement with his application in which he admitted to carrying a switch blade knife in his pocket and that it did cut the other guy's jacket.  The ADRB decisional document notes that the discharge was for an assault with a knife and fists.  The applicant's request was denied.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military), paragraph 2–9, states 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 regulations governing the Board’s operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.


3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20100028812





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ABCMR Record of Proceedings (cont)                                         AR20100028812



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