IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110012287 


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 general discharge to an honorable discharge.

2.  The applicant states he was in a fight, he received one Article 15 throughout his whole tour, and he was abruptly discharged only months before his ending date.  He also did a rotation in Kuwait.

3.  The applicant provides no additional documentation.

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.  On 15 May 1992, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 8 September 1992, the applicant was assigned for duty with the
3rd Battalion, 1st Field Artillery Regiment, located in the Federal Republic of Germany (FRG).

4.  On 1 June 1993, the applicant was advanced to the rank/grade of private first class (PFC)/E-3;

5.  On 21 February 1994, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for unlawfully striking two other enlisted Soldiers with a closed fist (assault consummated by battery) on
30 December 1993.

6.  On 23 March 1994, the applicant underwent a mental status evaluation wherein the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally capable of participating in the separation processing.

7.  On 31 March 1994, the applicant's company commander notified him that he initiating action to discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of a serious offense based on striking two other Soldiers with a closed fist.  He was advised of his right to consult with counsel, to submit statements in his own behalf, and to waive his rights in writing.

8.  The applicant, having consulted with counsel, elected to submit a statement in his own behalf, but it is not available for review.  He understood that he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.

9.  On 31 March 1994, the applicant’s commander recommended his separation from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, due to the commission of a serious offense, specifically for striking two other Soldiers with a closed fist.

10.  On 26 April 1994, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, 


paragraph 14-12c, for commission of a serious offense, with a General Discharge Certificate.  Accordingly, on 4 May 1994, the applicant was separated with a general discharge.  He completed 1 year, 11 months, and 20 days of creditable active service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	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.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 128 for assault consummated by battery is a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded because he was in a fight and he only received one Article 15 throughout his military service.

2.  The record shows the applicant accepted NJP for assault consummated by battery.  The UCMJ authorizes maximum punishment of a punitive discharge, 


loss of all pay and allowances, and confinement for 6 months for such misconduct.  The commander's decision to administratively discharge him resulted in a far lesser punishment and it was not unjust or too harsh.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  Although an under other than honorable conditions discharge was normally appropriate under chapter 14, it appears his chain of command considered his overall record of service when the separation authority directed a general discharge.

5.  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)                                         AR20110012287



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ABCMR Record of Proceedings (cont)                                         AR20110012287



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