IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110016635 


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 undesirable discharge be upgraded to honorable. 

2.  The applicant states:

* he believes the current record to be false
* he is trying to receive medical help form the Department of Veterans Affairs (DVA) and cannot with his current discharge

3.  The applicant provides no documentary evidence. 

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 20 December 1973 for a period of 2 years.  He completed his training and was awarded military occupational specialty 13B (field artillery crewman).

3.  On 2 April 1975, nonjudicial punishment (NJP) was imposed against the applicant for using provoking speech and gestures toward a military police investigator and communicating a threat.

4.  On 23 April 1975, he was convicted by a special court-martial of assaulting two Soldiers and communicating a threat to injure two Soldiers.  He was sentenced to be confined at hard labor for 90 days, to forfeit $225.00 pay per month for 3 months, and to be reduced to E-1.  On 25 April 1975, the convening authority approved the sentence.  

5.  His charge sheet is not available but his commander indicated charges were aggravated assault and assault consummated by a battery, both offenses occurring on 13 July 1975. 

6.  On 14 July 1975 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  The Battery and Battalion commanders recommended disapproval of the chapter 10 request due to the seriousness of the offenses.

8.  On 25 July 1975, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

9.  He was discharged on 11 August 1975 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He completed a total of 1 year, 
7 months, and 22 days of total active service.

10.  On 16 January 1986, the Army Discharge Review Board denied his request for an honorable discharge.
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

12.  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.

13.  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.  His contention that he believes the current record to be false relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, the applicant voluntarily requested discharge in lieu of trial by court-martial.  In submitting his request for discharge he was, in effect, admitting he was guilty of the charges.

2.  A discharge is not changed for the purpose of obtaining VA benefits.

3.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.    He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  His record of service included one NJP, one special court-martial conviction for assault and communicating a threat to injure and assault offenses for which court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20110016635





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ABCMR Record of Proceedings (cont)                                         AR20110016635



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