IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002876 


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 discharge under other than honorable conditions to a general discharge and reinstatement of his rank/grade.

2.  The applicant states he was raised in a military family and he enlisted with a goal to become a military policeman and then join law enforcement.  He was an outstanding Soldier with excellent military appearance and he was noted for his appearance by a post commander at one time.  However, his problems started when he arrived in Panama.  His wife was unable to cope with the military environment and they started having marital problems that ultimately led to his confinement.  He attributes his problems to racial issues, lack of support by his chain of command, and threats by his wife.  Additionally, at one time his chain of command tried to change his military occupational specialty (MOS).  He does not want to depart this life with an injustice that occurred many years ago.  He would like his discharge upgraded.

3.  The applicant provides:

* DA Form 4187 (Personnel Action)
* discharge orders
* Oath of Extension of Enlistment
* medical statement
* separation packet
* promotion orders
* letters of appreciation

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 records show he enlisted in the Regular Army on 17 October 1978 and held MOS 95B (Military Police).  He was advanced to private first class/E-3 on 17 October 1979 and to specialist four/E-4 on 1 October 1980.

3.  He served in Panama from 31 March 1981 to 19 January 1982.  His records show he was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle and Grenade Bars, and Marksman Marksmanship Qualification Badge with Pistol Bar.

4.  On 17 August 1981 subsequent to extreme marital and debt problems, he was referred to the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) to determine the extent of his drug or alcohol abuse. The immediate commander recommended his enrollment in the program.

5.  On 26 August 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction of duty by failing to properly secure his pistol.

6.  On 23 September 1981, he underwent a mental status evaluation and he was diagnosed with an antisocial personality disorder.  His condition was resistant to psychiatric treatment since there was an absence of the need for treatment as far as the applicant was concerned.  He was cleared for an appropriate disposition by his chain of command.

7.  On 7 and 18 December 1981, court-martial charges were preferred against him for two specifications of disobeying a lawful order, one specification of communicating a threat to injure a sergeant first class by shooting him, and one specification of escaping from confinement at Fort Clayton, Panama.

8.  On 18 December 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge the applicant indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service.  He further acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He also acknowledged he understood if his discharge request were approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement on his own behalf.

10.  On 30 December 1981 and 5 January 1982, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.  Subsequent to submitting this request, his battalion commander interviewed him.  His commanders all agreed he had been a disruptive force within the unit.

11.  Consistent with the applicant's entire chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by a court-martial in accordance with chapter 10 of Army Regulation 635-200 and directed an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 20 January 1982, the applicant was accordingly discharged.

12.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial in the rank/grade of private/E-1 with a character of service of under other than honorable conditions.  This form further shows he completed a total of 3 years, 3 months, and 20 days of creditable active military service.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

14.  He submitted:

	a.  a DA Form 4187, undated, wherein his chain of command appear to have initiated a request to reclassify him into another MOS after he demonstrated he could no longer be trusted as a military policeman subsequent to his several domestic disturbances and antisocial behavior diagnosis;

	b.  a letter of appreciation from his former battalion commander at Fort Benning, GA, who commented on his support of Federal authorities and a local bank; and

	c.  a letter of appreciation from a local bank in Georgia thanking his commander for the outstanding support provided by the unit.

15.  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.  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.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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.  Paragraph 3-7b states 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 his discharge should be upgraded and his rank/grade should be restored.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ 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.  The applicant 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.  Further, his discharge accurately reflects his overall record of service.

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 honorable or a general discharge.

4.  With respect to his rank/grade, when the separation authority approved the applicant's voluntary discharge in lieu of trial by court-martial, he ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

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 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)                                         AR20110002876



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ABCMR Record of Proceedings (cont)                                         AR20110002876



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