IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003464 


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 a general discharge. 

2.  The applicant states he was never formally charged with any infraction that contributed to his discharge. 

3.  The applicant provides a statement of domicile in a homeless shelter. 

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 5 April 1976 and held military occupational specialty 67Y (AH-1 Helicopter Repairman).  He served in Germany from 21 September 1976 to on or around 20 March 1978.  He was awarded the Expert Marksmanship Qualification Badge with Rifle Bar and Marksman Marksmanship Qualification Badge with Grenade Bar.

3.  On 3 November 1977, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully striking another Soldier on the body.

4.  On 6 January 1978, subsequent to an Article 32 hearing, court-martial charges were preferred against the applicant for:

* one specification of committing an assault against a German national by striking him on the face, arms, and torso with a wooden club
* one specification of unlawfully possessing 170 grams, more or less, of marijuana in the hashish form
* one specification of communicating a threat to injure or kill two Soldiers (Military Police) while under apprehension in a military vehicle

5.  On 28 February 1978, additional court-martial charges were preferred against him for one specification of committing an additional assault against a German national with a wooden club and inflicting bodily harm against him.

6.  Subsequent to being charged, 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 that were 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).

7.  In his request for discharge the applicant indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated that 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 a discharge he was admitting guilt to the charges against him or of 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 that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He finally elected not to submit a statement on his own behalf.
8.  His immediate and intermediate commanders recommended disapproval of the discharge and to proceed with a court-martial empowered to adjudge a bad conduct discharge.  However, his senior commander recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

9.  On 4 March 1978, subsequent to a legal review for sufficiency, the separation authority approved the applicant's request for voluntary 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 that he be reduced to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.  On 22 March 1978, the applicant was accordingly discharged.  

10.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged in the rank/grade of private/E-1 for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 1 year, 11 months, and 18 days of creditable active military service.

11.  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.

12.  He submitted a statement verifying that he is a guest at a shelter in Brockton, MA.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

14.  Paragraph 3-7b of Army Regulation 635-200 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 was charged with the commission of offenses 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.

2.  Contrary to his contention that he was not formally charged, the evidence of record shows court-martial charges were preferred against him for various infractions and that he elected a discharge in lieu of the court-martial. 

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 also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

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)                                         AR20110003464



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003464



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1