IN THE CASE OF:	   

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110018649 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states he requested an upgrade of his discharge in 1988; however, his case was denied as his case was not strong enough.

3.  The applicant provides no additional 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.  With 1 year, 6 months, and 1 month of prior active service, the applicant enlisted in the Regular Army on 28 November 1978.  He completed training as a motor transportation operator.  He remained on active duty through continuous reenlistments and/or extensions.

3.  On 6 September 1988, court-martial charges were preferred against the applicant for assaulting his wife and thereby intentionally inflicting grievous bodily harm upon her.  On 23 September 1988, the charges were referred for trial by a special court-martial empowered to adjudge a bad conduct discharge.

4.  On 23 September 1988, having been advised by counsel of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  In his request for discharge, he acknowledged:

* he was making his request of his own free will and have not been subject to any coercion whatsoever by any person
* that if his request for discharge was accepted, he could be discharged under other than honorable conditions 
* that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

6.  On 30 September 1988, the appropriate separation authority approved the applicant's 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 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.  On 25 October 1988, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10.  He completed 9 years, 10 months, and 28 days of net active service this period for a total of 11 years, 4 months, and 29 days of total active service.

7.  On 14 February 1990, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 14 November 1991, the applicant appeared before a personal appearance hearing with counsel.  After careful consideration of the applicant's military records, all other available evidence, and his personal testimony, the ADRB determined the applicant was properly and equitably discharged.  As such, the ADRB denied his petition for an upgrade of his discharge.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a states 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 states 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 record shows he had charges pending against him for assaulting his wife and thereby intentionally inflicting grievous bodily harm upon her.  Rather than stand trial by court-martial he elected to be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  Considering the nature of his offenses it appears the type of discharge he received was appropriate.

2.  In accordance with the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20110018649



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ABCMR Record of Proceedings (cont)                                         AR20110018649



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