IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110009389 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  He states:

* his conduct was due to alcoholism that was never treated
* he was drunk and he hit an officer not knowing who he was at the time

3.  He provides no additional documents.  

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 13 September 1976 for a period of 3 years.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on two occasions for the following offenses:

* striking two Soldiers with his fist
* behaving with disrespect towards a commissioned officer
* being disrespectful in language towards a noncommissioned officer
* twice willfully and wrongfully breaking a window, the property of a civilian and the military property of the U.S. Government
* failing to obey a lawful order 

4.  On 27 October 1977, charges were preferred against him for:

* resisting being lawfully apprehended by a military policeman
* unlawfully striking a private first class (PFC)/E-3 in the face with his fist
* unlawfully striking a private/E-2 in the face with his fist which contained a shaving cream can
* unlawfully striking a PFC in the chest with his hands
* striking a second lieutenant/O-2 in the head with a wooden shoe tree, a means and force likely to produce grievous bodily harm
* wrongfully communicating a threat to kill a PFC 
* breaking restriction
* striking a sergeant in the face with his fist
* assaulting a staff sergeant by swinging a broom handle, a means likely to produce grievous bodily harm

5.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged he understood he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  

6.  The separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with the issuance of a UOTHC discharge.  

7.  On 17 November 1977, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC Discharge Certificate.  He completed 1 year, 2 months, and 5 days of creditable active service.  

8.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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 UOTHC discharge is normally considered appropriate.

   b.  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.
   
   c.  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.  Although the applicant contends that his misconduct was due to alcoholism, his service record is void of evidence which shows he was diagnosed with alcohol abuse or dependency prior to discharge.  

2.  In any case, his contention that he was never treated does not justify the offenses he committed.  There is no evidence he took steps to self-refer for alcohol abuse treatment while in the Army.  

3.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  

4.  He was advised of the effects of a UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined.

5.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or fully honorable discharge.  

6.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the 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)                                         AR20110009389



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ABCMR Record of Proceedings (cont)                                         AR20110009389



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