BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029014 


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 undesirable discharge (UD).

2.  He states that he was completely innocent of any wrong doing.  There really is not any physical evidence or witness he can produce.  The only thing he can tell is the truth.  During basic training a fellow Soldier, with whom he went to high school, got into a fight and he thinks this Soldier pulled a knife on someone.  Because he was standing next to this Soldier he was taken to the stockade also.  There were no punches thrown by anyone and no one was stabbed, only words exchanged which he had no part of either.   The fellow Soldier accepted a discharge under other than honorable conditions (UOTHC) right away.  He chose to stay in the Army and have a hearing.  He was told by his commanding officer that he would spend five years in confinement and then finish out his term.  When he realized he had no other choice he took the UOTHC discharge.  He had to take a discharge that he did not deserve.  

3.  He also states that he joined the Army right after high school to go to Vietnam. He did serve honorably during his period of service.  He was forced to admit to something he did not do.  If he is not mistaken, President Clinton pardoned the draft evaders.  This makes him wonder about how he was judged when he was not drafted but joined the military.  With an honorable discharge he could gladly have finished out his tour.  He could do a lot of good for the Army now more than he could have in 1972 and 1973.

4.  He provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter from the National Personnel Records Center.

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's military records show he enlisted in the Regular Army, in pay grade E-1, on 22 August 1972, for 2 years.  He did not complete advanced individual training; therefore, he retained his military occupational specialty (MOS) of 09B (trainee).  

3.  On 5 December 1972, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company E, 1st Battalion, 4th Advanced Individual Training Brigade (Combat Support), Fort Polk, LA.  He was charged with one specification each of the following:

* Unlawfully striking and kicking a fellow Soldier on the back and head with his fists and feet on 2 December 1972
* Wrongfully communicating a threat to kill to a fellow Soldier on 2 December 1972
* Wrongfully having a knife with a blade in excess of three inches within the boundaries of the Fort Polk Reservation on 3 December 1972

4.  On 18 December 1972, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged UOTHC and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.  He further acknowledged receipt of a fact sheet pertaining to applying for a recharacterization of a less than honorable discharge.

5.  In his statement, he stated that he wished to be discharged because he did not want to be tried by court-martial and did not want to be sentenced or serve time in jail.  Because of an excessive amount of personal problems at home he found it hard to adapt to the military life.  If he stayed in the Army he would most likely get into trouble again.  He would rather be at home working and anyway he intended to go back to school for a trade.

6.  On 27 December 1972, the Commander, 4th Advanced Individual Training Brigade recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  

7.  On 8 January 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

8.  He was discharged in pay grade E-1 on 16 January 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  His service was characterized as UOTHC.  He was credited with completing 5 months and 7 days of active service.

9.  There is no evidence he requested assistance through his chain of command for any problems he was having during his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, on 5 December 1972, he was charged with one specification each of unlawfully striking and kicking a fellow Soldier with his fists and feet, communicating a threat to kill another Soldier, and wrongfully having a knife with a blade in excess of three inches.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

2.  At the time, he also acknowledged that he could be discharged UOTHC and furnished a UD Certificate.  He also stated that he wished to be discharged because he did not want to be tried by court-martial and did not want to be sentenced or serve time in jail.  If he stayed in the Army he would most likely get into trouble again.  He would rather be at home working and anyway he intended to go back to school for a trade.

3.  He submitted no evidence to mitigate his offenses or to show that he was denied any assistance for any problems from his chain of command.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting his request.


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)                                         AR20100029014





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ABCMR Record of Proceedings (cont)                                         AR20100029014



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