IN THE CASE OF:	  

		BOARD DATE:	    21 June 2011

		DOCKET NUMBER:  AR20100028962 


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 enlisted in the U.S. Army in October 1981, completed training, and was awarded military occupational specialty (MOS) 19D (Cavalry Scout).  He was assigned overseas to Headquarters and Headquarters Company, 3rd Battalion, 32nd Armor, and stationed in Friedberg, Germany.

   a.  In September 1983 he was selected for Officer Candidate School (OCS). He graduated from OCS on 18 April 1984, was honorably discharged from the U.S. Army, and appointed as a commissioned officer on 27 April 1984.

   b.  He attended the Armor Officer Basic Course at Fort Knox, KY, and was then assigned to the 5th Battalion, 77th Armor in Mannheim, Germany, where he served as a tank platoon leader and then as a company executive officer.

   c.  On the evening of 17 September 1987, he and his wife (whom he was separated from at the time) attended an Oktoberfest event in Friedberg in an attempt to work out some marital issues prior to his reassignment to the United States.  He acknowledges that he had some alcoholic beverages during their meeting.

   d.  Afterwards, while they were walking up an alley to get a taxicab, he was attacked by an unknown assailant.  There were no witnesses and he was charged with attempted murder, pending an investigation.
   e.  Since he had been drinking, his command decided that he had displayed poor judgment and conduct unbecoming an officer.  Due to the severity of the charges, he realized that his military career was irreparably damaged and he submitted his resignation.  His entire chain of command supported his resignation with an honorable or general discharge.  However, the separation authority directed a discharge under other than honorable conditions.

   f.  He requested correction of the character of his discharge when he applied for reinstatement and admission to the Georgia Army National Guard (GAARNG) in September 1990.  His reinstatement was granted, but with no change to his discharge.  He was promoted to the rank of major and served until August 2004, when he retired from the GAARNG.  He was recalled to active duty in August 2008 and served as a combat advisor in Iraq.  He was honorably released from active duty on 4 October 2009.

3.  The applicant provides a military biographical summary, along with copies of his appointment and promotion documents, Officer Evaluation Reports (OERs) and Academic Evaluation Reports (AERs), awards, separations documents, and a Department of Veterans Affairs (VA) letter.

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.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period in an enlisted status on 22 October 1981 and he was honorably discharged on 26 April 1984.  He completed 2 years, 6 months, and 5 days of net active service.  It also shows he was awarded MOS 19D and that he completed the 14-week OCS course in April 1984.

3.  The applicant was appointed as a Reserve commissioned officer and he was ordered to active duty on 27 April 1984.  He was assigned overseas to Germany and promoted to first lieutenant (1LT) on 27 October 1985.
4.  On 21 September 1987, the applicant's commander preferred court-martial charges against him for, on 19 September 1987, violation of the Uniform Code of Military Justice (UCMJ),:

* Article 80 for attempting to murder an enlisted Soldier by stabbing him in the neck with a knife
* Article 128 for unlawfully striking his wife on the face with his hand
* Article 133 for being disorderly by consuming alcoholic beverages and engaging in verbal altercations with his wife and several enlisted Soldiers

5.  On 22 September 1987, an investigating officer (IO) was appointed to investigate the charges preferred against the applicant.

6.  On 5 October 1987, a formal Article 32(b) investigation of the facts and circumstances into the charges preferred against the applicant was conducted.

   a.  The applicant was represented by defense counsel and both were present at the proceedings. 

   b.  The IO advised the applicant of his rights.  The applicant acknowledged he had been provided a copy of the investigation file compiled in the case and that he was informed of the rank and names of the intended witnesses to be called.

   c.  After hearing the evidence and reviewing the sworn statements, the IO recommended that Charge I be reduced from attempted murder to aggravated assault, that Charges II and III were accurately articulated, and that a trial by general court-martial be initiated.

7.  The applicant's commander again preferred court-martial charges against him for, on 19 September 1987, violation of the UCMJ:

* Article 128 for assault on an enlisted Soldier by stabbing him on the neck with a knife, thereby intentionally inflicting grievous bodily harm upon him
* Article 128 for unlawfully striking his wife on the face with his hand
* Article 133 for being disorderly by consuming alcoholic beverages and engaging in verbal altercations with his wife and several enlisted Soldiers

8.  On 16 November 1987, the applicant voluntarily tendered his resignation from the Army under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 5 (Resignation for the Good of the Service).  The applicant's request for discharge states he had been fully advised and counseled in this matter by an officer of the Judge Advocate General's Corps, and of the implications of the action, and that he had not been subjected to coercion with respect to his resignation.

	a.  He acknowledged that he understood that, if accepted, his resignation may be considered as being under other than honorable conditions, that he may be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration.  He also understood that an Under Other Than Honorable Conditions Discharge Certificate would be furnished.

   b.  He acknowledged that he was afforded the opportunity to present matters in explanation, mitigation, or defense of his case and that such matters were attached to his resignation and the Article 32 investigation.

   c.  He attached a statement in which he provided information about his marriage, which included infidelity by his wife with an enlisted Soldier.

       (1)  He stated that his wife was going to the Oktoberfest with her boyfriend and she invited the applicant to join them.  He acknowledged arguing with his wife and the two of them slapping each other.

       (2)  He described the altercation that occurred after leaving the event and while walking up a stairway.  He stated, as was his habit, he was holding a small	 penknife in his hand.  He was struck from behind and, in the ensuing struggle, the assailant sustained a stab wound to the neck.  The applicant asserted that, "[w]hen I defended myself, I did so completely unaware of the penknife still in my hand, and of the identity of my assailant."

       (3)  He concluded he was confident that a court-martial would find the assailant's injuries were caused accidently and would exonerate him of the most serious charge.  However, the two remaining charges carried severe penalties, and a court-martial conviction for any offense would preclude his continued service.

9.  The company, battalion, and brigade commanders recommended approval of the applicant's resignation for the good of the service with a general discharge under honorable conditions.  The corps commander recommended he receive an under other than honorable conditions discharge.

10.  On 19 January 1988, the Deputy Assistant Secretary, Department of the Army (DA) Review Boards and Equal Employment Opportunity Compliance and Complaints Review, approved the recommendation of the DA Ad Hoc Review Board that the resignation for the good of the service tendered by the applicant be accepted with discharge under other than honorable conditions.  Accordingly, the applicant was discharged on 17 February 1988.

11.  The applicant's DD Form 214 shows he was discharged on 17 February 1988 in accordance with Army Regulation 635-120, chapter 5, for conduct triable by court-martial with his service characterized as under other than honorable conditions.  He completed 3 years, 9 months, and 21 days of net active service during this period.

12.  In support of his application, the applicant provides the following documents: 

   a.  A Military Biographical Summary that outlines his civilian education, record of duty assignments, military education, and awards and decorations.

   b.  U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated 15 March 1991, that shows he was appointed as a Reserve commissioned officer in the rank of 1LT on 8 September 1990.

   c.  Two promotion documents that show he was promoted to captain on
1 October 1991 and promoted to major on 26 September 2002.

   d.  Seventeen OERs spanning the period from 20 August 1984 through
23 September 2009 that document his duty performance over the course of his military career.

   e.  Two AERs that show he completed the Armor Officer Advanced Course on 9 August 1991 and the Company Level Pre-Command Course on 11 December 1993.

   f.  Ten award documents that show he was awarded the Bronze Star Medal, Meritorious Service Medal, Army Commendation Medal (3rd Award), Army Achievement Medal (7th Award), Army Good Conduct Medal, Army Reserve Components Achievement Medal, National Defense Service Medal, Humanitarian Service Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Combat Infantryman Badge, and State of Georgia awards and decorations. 

   g.  A DA Form 4833 (Commander's Report of Disciplinary or Administrative Actions), dated 4 March 1988, that shows [the original charges for] the offenses of attempted murder and assault, that occurred on 19 September 1987, were dismissed based on the applicant's administrative discharge under the provisions of Army Regulation 635-120, chapter 5, effective 2 February 1988.

   h.  A DD Form 214 that shows the applicant was ordered to active duty on
30 November 1990 and he was honorably released from active duty in the rank of 1LT on 22 April 1991 based on completion of the period ordered to active duty. He completed 4 months and 23 days of net active service during this period.

   i.  A DD Form 214 that shows the applicant was ordered to active duty for training (ADT) on 8 May 1991 and he was honorably released from ADT in the rank of 1LT on 9 August 1991 based on completion of ADT.  He completed
3 months and 2 days of net active service during this period.

   j.  The Adjutant General, State of Georgia, Ellenwood, GA, Orders 248-036, dated 4 September 2004, that honorably separated the applicant from the Army National Guard (ARNG) effective 17 July 2004 and transferred him to the Retired Reserve on 18 July 2004.

   k.  A DD Form 214 that shows the applicant was ordered to active duty in support of Operation Iraqi Freedom on 31 August 2008, he served in Kuwait and Iraq, and he was honorably released from active duty in the rank of major on
4 October 2009 based on completion of required active service.  He completed
1 year, 1 month, and 4 days of net active service during this period.

   l.  Department of VA, Atlanta Regional Office, Decatur, GA, letter, dated
22 October 2010, that amended a VA letter, dated 5 August 2010.  It shows that the VA notified the applicant that, "[a]ny time a veteran receives a discharge that is not 'honorable,' we have to decide if you are eligible for VA benefits.  The military has said your service was not 'honorable.'  Therefore, we have to make a decision about your service.  As long as we decide that your service was not 'dishonorable,' you will be eligible for VA benefits."

13.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  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 both offenses under Article 128 for assault.  A punitive discharge is also authorized under Article 133 for conduct unbecoming an officer.

15.  Army Regulation 635-120 sets forth the basic authority for the resignation of officers.  Chapter 5 provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial.  Commanders will ensure there is no element of coercion in submitting a resignation for the god of the service.   Although an under honorable conditions (general) discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-100 (Personnel Separation - Officer Personnel) provides: 

   a.  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 officer'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.

   b.  a general discharge under honorable conditions is issued to an officer 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 to an honorable discharge because his chain of command supported his resignation under honorable conditions, he subsequently served honorably in the GAARNG and on active duty in support of Operation Iraqi Freedom, and he was honorably retired in the rank of major.

2.  The applicant's resignation under the provisions of Army Regulation 635-120, chapter 5, 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 outweighed his overall record of service at the time of his discharge.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.

3.  The applicant's record of prior honorable active duty enlisted service and his honorable service as a commissioned officer in the GAARNG subsequent to
17 February 1988 were carefully considered.

   a.  The applicant's periods of honorable active duty enlisted service, and his ADT and active duty as a commissioned officer are documented on four separate
DD Forms 214.

   b.  His honorable service as a commissioned officer in the ARNG is documented in GAARNG orders.

   c.  Thus, the periods of the applicant's honorable military service are appropriately documented and have been recognized.

4.  The evidence of record shows the applicant was charged with three offenses and that the maximum punishment for each of the three separate chargeable offenses provided for a punitive discharge.  The applicant voluntarily elected to tender his resignation in lieu of appearing before a court-martial or board of officers.  The applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army officers and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service during the period in question was not satisfactory and he is not entitled to a general discharge.

5.  In view 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)                                         AR20100028962



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028962



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1