IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110004968 


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. 

2.  The applicant states that he was fighting to defend himself.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 30 December 1978, and a previously submitted DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with a statement of his issues in support of his request.

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 for a period of 3 years on 13 April 1976 and held military occupational specialty 36C (Telephone Installer/Lineman).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  His record reveals that on 24 July 1978 he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for striking a non-commissioned officer (NCO) on the back of his head with his closed fist.  His punishment was a forfeiture of $48.00 pay and 14 days of extra duty (3 hours per day).  He did not appeal this punishment.

4.  On 18 October 1978, he received an Article 15 for willfully disobeying a lawful order given by his superior NCO.  His punishment was reduction to E-2, a forfeiture of $109.00 pay, and extra duty for 14 days (3 hours per day).  He did not appeal this punishment.

5.  On 7 November 1978, he received a Bar to Reenlistment based on the following:

* Receiving 3 Article 15s
* Two accounts of non-payment of just debts 
* Receiving five counseling statements 
 
6.  The charge sheet is not available.

7.  On 6 December 1978 he consulted with legal counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged that 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 understood that if his request were approved, he might be discharged under other than honorable conditions.  He further acknowledged he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated he understood that once his resignation was submitted, it may be withdrawn, whether or not accepted, only with the consent of the commander exercising general court-martial jurisdiction over him.  He declined to submit a statement on his own behalf.

9.  On 7 December 1978, the applicant's intermediate commander recommended approval of this discharge under the provisions of chapter 10, Army Regulation 635-200, with the issuance of a discharge under other than honorable conditions. 

10.  On 11 December 1978, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200.  The separation authority directed he receive a discharge under other than honorable conditions and that he be reduced to the lowest enlisted grade.  On 30 December 1978, the applicant was discharged accordingly.

11.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 2 years, 8 months, and 18 days of creditable active service.

12.  On 5 May 1980, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

13.  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, an undesirable discharge was considered appropriate at the time.

14.  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.

15.  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.  




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was fighting to defend himself.

2.  His record indicates he 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.  He 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.  His character of service is appropriate based on the facts of the case and 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 also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or 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)                                         AR20110004968





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ABCMR Record of Proceedings (cont)                                         AR20110004968



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