IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20110000520 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states that prior to the alleged incident his service was fair.  He goes on to state that at the time his wife worked at the installation snack bar and became involved in an altercation with the spouse of his commander, which they could have resolved themselves.  However, once his commander found out it was his wife, he began to scrutinize his actions.  He further states that the incident that caused his demise was that he forgot to log in a small switchblade he found while on guard duty and it was discovered by the officer in charge who told him to report to the commander the following day.  He continues by stating that he attempted to explain that it was an oversight and his explanation was rejected and he was served with nonjudicial punishment.  He concludes by stating that he was unjustly accused by the first sergeant and two other Soldiers of saying that he would kill the commander as he exited the office.  Additionally, he was not afforded the opportunity to defend himself.

3.  The applicant provides no additional documents with 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 in Miami, FL on 18 July 1978 for a period of 3 years.  He was transferred to Fort McClellan, AL for his one-station unit training as a military policeman.

3.  On 22 August 1978, nonjudicial punishment (NJP) was imposed against him under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a superior noncommissioned officer (NCO). 

4.  The applicant completed his basic training; however, he was academically released from military policeman training and was transferred to Fort Lee, VA to undergo advanced individual training as a materiel supply specialist.

5.  He completed his training and he was transferred to Bamberg, Germany on 24 March 1979 for assignment to a field artillery battery.

6.  On 19 November 1979, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

7.  On 3 July 1980, charges were preferred against the applicant for disobeying a lawful order from a superior commissioned officer for wrongfully and unlawfully having in his possession a switchblade knife and for wrongfully communicating a threat to injure his commander.

8.  On 11 July 1980, after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he 


understood he could receive an under other than honorable conditions discharge and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

9.  The applicant’s commander indicated that the applicant had been the worst disciplinary problem in the battery since his arrival.  His driver’s license was suspended for traffic point accumulation and he continued to drive his privately owned vehicle.  He was arrested for carrying a concealed weapon, he disobeyed a direct order, and he frequently missed formations and leaves work without authorization.  He was dismissed as a unit police gate guard for misconduct and despite repeated counseling, he showed no desire to improve his behavior.

10.  On 25 July 1980, the appropriate authority (a major general) approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.

11.  Accordingly, on 8 August 1980, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 2 years and 21 days of total active service.

12.  On 7 December 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable.  He contended he was innocent of the charges against him and that his service warranted an honorable discharge.  On 8 June 1982, the ADRB found his discharge was both proper and equitable and unanimously voted to deny his request.

13.  The applicant again applied to the ADRB on 14 June 1982 for an upgrade of his discharge and contended that the offense for which he was charged did not warrant the discharge he received.  He was granted a personal appearance before the ADRB Travel Panel in Tampa, FL on 14 June 1983.  On 27 June 1983, the ADRB again unanimously denied his request.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or 


she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, 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.

16.  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.  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's voluntary 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 administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of the charges against him, his undistinguished record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of a general or an honorable discharge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20110000520



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ABCMR Record of Proceedings (cont)                                         AR20110000520



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