IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110009245 


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 to an honorable discharge.

2.  The applicant states his offense was in self-defense and he was given the option of court or home.  He was 17 years old and scared so, he elected to go home which turned out to be a bad decision.  He states this is the last black mark to be removed from his life.

3.  The applicant provides a character reference letter in support of 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 on 7 April 1977.  He completed training and he was awarded military occupational specialty 67Y (Attack Helicopter Repairman).  He served in Germany from 4 December 1977 to 6 April 1978.  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his discharge he held the rank/grade of private (PV1)/E-1.

3.  A DD Form 458 (Charge Sheet), dated 27 February 1978, shows court-martial charges were preferred against the applicant for:

	a.  Violating Article 128 of the Uniform Code of Military Justice (UCMJ) by striking another Soldier in the head with means likely to produce grievous bodily harm, to wit: a beer bottle, on or about 24 February 1978;

	b.  Violating Article 86, UCMJ, by failing to go at the time prescribed to his appointed place of duty on or about 9 and 21 February 1978; and

	c.  Violating Article 107, UCMJ, by with intent to deceive, making a false statement on an official document on or about 15 February 1978.

4.  A DD Form 458, dated 13 March 1978, shows additional court-martial charges were preferred against the applicant for:

	a.  Three Specifications of violating Article 128, UCMJ, by assaulting three different Soldiers with his fists on their faces and bodies on or about
17 December 1977; and

	b.  Violating Article 134, UCMJ, by being drunk and disorderly in quarters on or about 17 December 1977.

5.  His chain of command recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.

6.  On 17 March 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written 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.  In his request for discharge he indicated he understood 

that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Although he indicated he elected to submit statements in his own behalf, there is no such statement in his record.

7.  On 20, 22, and 27 March 1978, respectively, his troop, squadron, and regimental commanders recommended disapproval of his request for discharge for the good of the service.  They all opined that due to the severity of the offenses committed by the applicant, judicial action was the only appropriate recourse.

8.  On 28 March 1978, the separation authority (a lieutenant general) approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 7 April 1978, the applicant was discharged accordingly.

10.  On 27 October 1982, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 23 November 1983, The Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

11.  The applicant provides a letter from an Administrative Assistant at the Christ Bible Discipleship Worship Center located in Marshville, NC, dated 19 April 2011, wherein he attests that the applicant has been a member of their organization since 18 July 2007 as a member of their faith-based program for addictions.  He stated the applicant had been the House Monitor for the program for the last 3 years.  He also stated the applicant was ordained as a Deacon in January 2009 and he is a man of good character.

12.  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.

13.  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.

14.  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's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  His record is void of any evidence and he has not provided any evidence showing he was acting in self-defense when he committed the numerous assaults for which he was charged; therefore, his claim is unsubstantiated.

3.  The applicant's record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation
635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's post-service accomplishments following his discharge are not sufficient to mitigate the misconduct that led to his voluntary request for discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110009245



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ABCMR Record of Proceedings (cont)                                         AR20110009245



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