IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110019083 


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 that his undesirable discharge be upgraded.

2.  The applicant states he believes that he was coerced into seeking a discharge under other than honorable conditions due to his youth and his superior’s improper analysis of the incident.  He further states that his superiors surmised that he was the perpetrator when in fact he was the victim.  He goes on to state that maturity has given him the ability to give a better explanation of facts that were not previously evident.  

3.  The applicant provides a two-page letter explaining his application and the circumstances that led to his discharge.

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 in Atlanta, Georgia on 14 January 1971 for a period of 3 years.  He completed the training requirements and he was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).  He was promoted to the pay grade of E-5 on 13 September 1971.  

3.  On 27 October 1971, the applicant was transferred to an armor company at Fort Hood, Texas and on 6 December 1971 charges were preferred against the applicant for striking another Soldier in the head with a steel cable with intent to inflict grievous bodily harm upon him, to wit: a deep cut in the head and possible fractured skull. 

4.  On 15 December 1971, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also declined to submit a statement in his own behalf.

5.  The company and battalion commanders recommended that he be issued an undesirable discharge; however, the brigade commander recommended that he be issued a general discharge.  He also stated that the applicant was the youngest E-5 in the brigade, that he did not thoroughly understand the provisions of such a discharge, that his past record had been excellent, and that the expected testimony indicates that he was provoked and reacted in self-defense. 

6.  On 6 January 1972, the appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

7.  Accordingly, on 21 January 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year and 8 days of total active service.

8.  On 6 January 1974, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 25 February 1974, the ADRB determined his discharge was both proper and equitable and voted unanimously to deny his request.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

10.  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.

11.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his misconduct and the absence of mitigating circumstances.  His service simply did not rise to the level of a general discharge or an honorable 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)                                         AR20110019083



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ABCMR Record of Proceedings (cont)                                         AR20110019083



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