IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110024717 


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 an upgrade of his under other than honorable condition discharge to an honorable discharge.

2.  The applicant states he was at a noncommissioned officer (NCO) club in Germany.  The club was packed and a comrade had too much to drink and started an argument with a fellow comrade’s wife.  He tried to get his comrade to leave and go back to the barracks.  The crowd began to gather around as they were trying to get him out the door.  Other individuals got between them and his comrade swung over his shoulder and struck another person in the face.  He states since he was accompanying him, he was considered to have contributed to the act.  He states he was only trying to keep the peace and calm the situation. Everyone was under the influence of alcohol.  He adds that before he could go before the court to prove his innocence, his comrade elected to be found guilty of the act and he was sent to Fort Leavenworth, KS.  However, he stayed incarcerated in the Mannheim prison for about 50 days.  He states he and his commanding officer spoke of the matter and because he really could not prove his innocence, it would be best if he received a voluntary discharge.  He further states the letters from his enlisted service should reflect his character.  He enjoyed serving his country.

3.  He provides:

* 2 letters of appreciation
* A DA Form 750 (Record of Training) for the Discussion Leader Training Course
* An Academy of Health Sciences Diploma for the Patient Administration Specialist Course
* A Certificate of Graduation for the Primary Leadership Course
* 4 Certificates of Training
* His Under Other Than Honorable Conditions Discharge Certificate, dated 24 March 1981

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.  Having had prior active service, the applicant enlisted in the Regular Army on 21 September 1977.  He held military occupational specialty (MOS) 11B (infantryman) until he was awarded MOS 71G (Patient Administration Specialist) as his primary MOS on 10 March 1978.

3.  On 19 December 1979, he departed his unit in an absent without leave (AWOL) status and on 18 January 1980, he was dropped from the rolls of the Army as a deserter.  He returned to military control on 6 February 1980.

4.  On 11 February 1980, he accepted NJP under the provisions of Article 15, UCMJ for being AWOL fro 19 December 1979 to 6 February 1980.

5.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains:

a. A copy of Order 083-276, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, dated 24 March 1981, discharging him effective 24 March 1981; and 

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 24 March 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, with an Under Other Than Honorable Conditions Discharge Certificate.  This form shows he completed 3 years, 4 months, and 16 days of net active service this period with
3 years, 9 months, and 9 days of prior active service, for a total of 7 years,
1 month, and 25 days of creditable active service.  He also accrued 1 month and 19 days of time lost.

6.  On 3 September 1982, the Army Discharge Review Board, after careful consideration, determined he was properly and equitably discharged and denied his request for a discharge upgrade.

7.  His military service record shows he was awarded numerous achievement certificates and letters of commendation during his service.  He was specifically recognized for outstanding performance, achieving excellence, and completing various training courses.

8.  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.  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.

9.  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.

10.  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 contends that his discharge should be upgraded because he was wrongfully accused of the incident that occurred. 

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  His record contains a DD Form 214 that shows he was discharged on 24 March 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no evidence that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

4.  The applicant's circumstances regarding what occurred at the NCO Club at the time are noted.  However, his recollection of the events is not sufficiently mitigating in granting him the requested relief.  

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either a general 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)                                         AR20110024717



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ABCMR Record of Proceedings (cont)                                         AR20110024717



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