IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120002448 


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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states he feels his discharge was unjust because there was never any assault.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 4 August 1976, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 71N (Traffic Management Coordinator).  He was subsequently assigned for duty at Fort Campbell, KY.

3.  On 20 August 1977, the applicant was advanced to private first class, pay grade E-3.

4.  The applicant accepted the following nonjudicial punishments (NJPs):

* 3 February 1978: unsafe operation of a motor vehicle
* 8 May 1978: willfully disobey a lawful order to prepare for inspection
* 9 November 1978: willfully disobey a lawful order to go to clean-up detail

5.  On 1 January 1979, the applicant was advanced to specialist four, pay grade E-4.

6.  On 13 April 1979, charges were preferred under the Uniform Code of Military Justice (UCMJ) for the following violations occurring on 5 April 1979:

	a.  Charge I: violation of Article 90:

* Specification 1: willfully disobey an order from a commissioned officer to halt
* Specification 2: strike a commissioned officer by throwing an open hand to his chest and pushing him aside

	b.  Charge II: violation of Article 92 by swallowing suspected marijuana in violation of a general order or regulation.

	c.  Charge III: violation of Article 95, two specifications of resisting lawful apprehension.

7.  On 26 April 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

9.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  The applicant made a statement wherein he essentially said that he had swallowed some marijuana but at no time did he lay his hands on either commissioned officer.

11.  On 9 May 1979, the separation authority approved the applicant’s request for discharge and directed  he receive a UOTHC discharge.  On 11 May 1979, the applicant was discharged accordingly.  He had completed a total of 2 years, 
7 months, and 8 days of creditable active duty military service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC is normally considered appropriate.

14.  Under the UCMJ, the maximum punishment allowed for violation of:

	a.  Article 90, for willfully disobeying an order from a commissioned officer is a punitive discharge and confinement for 5 years.

	b.  Article 90, for striking a commissioned officer is a punitive discharge and confinement for 10 years.

	c.  Article 92, for failure to obey a general order or regulation is a punitive discharge and confinement for 2 years.

	d.  Article 95, for resisting lawful apprehension is a punitive discharge and confinement for 1 year.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 UOTHC should be upgraded to honorable because there was never any assault.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable by a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The applicant's contention that he never committed an assault upon a commissioned officer is noted.  However, he has not provided any conclusive evidence to corroborate his statement.  But, even without this charge, the administrative discharge was proper because each of the three charges carried a maximum punishment that included a punitive discharge.  Therefore, the applicant's contention is without merit.

4.  In view of the above, the applicant's request should be denied.






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)                                         AR20120002448





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ABCMR Record of Proceedings (cont)                                         AR20120002448



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