IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120003541 


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 be upgraded.

2.  The applicant states, in effect, that he was forced into accepting a chapter 10 discharge because he had no support from legal counsel.  He goes on to state that he was simply defending himself; however, his legal counsel told him that he would not be believed because he was a private and the person he had the fight with was a sergeant so he accepted the chapter 10 discharge.  He continues by stating that he has since found out that he has depression and is bipolar and may explain his anger issues.  He further states he wishes now that he had fought the issue at the time but desires to feel proud of his service and not go on feeling ashamed or that he was wrong.   

3.  The applicant provides no additional documents with his application.

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 Seattle, Washington on 26 March 1979 for a period of 3 years and training as a cavalry scout.  He completed his one-station unit training as a cavalry scout at Fort Knox, Kentucky and was transferred to Fort Carson, Colorado on 16 July 1979.  

3.  During the period 13 December to 18 December 1979, nonjudicial punishment was imposed against the applicant on three occasions for failure to go to his place of duty and disobeying a lawful order from a superior noncommissioned officer (NCO).

4.  Although the specifics are not present in the available records, the applicant was confined by civil authorities in Colorado Springs, Colorado from 19 July to 
21 July 1980.

5.  On 25 August 1980, charges were preferred against the applicant for being disrespectful in language towards a superior NCO and for wrongfully communicating a threat to kill an NCO and showing him the shotgun shell he was going to use to do it.

6.  On 2 September 1980, 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), 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 he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

7.  The appropriate authority (a major general) approved his request for discharge on 30 September 1980 and directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions on 16 October 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 6 months and 19 days of active service and had 2 days of lost time due to confinement by civil authorities.
9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 23 May 1983.  He contended that his discharge was inequitable and overly harsh when compared to the charges against him.  The applicant was granted a personal appearance before the ADRB traveling panel in Seattle, Washington on 1 May 1984 and was represented by counsel.  Both the applicant and his counsel testified at the hearing.  After considering all of the available evidence and testimony, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 18 May 1984.

10.  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 admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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 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.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and are found to lack merit.  The evidence of record clearly shows he was represented by defense counsel and that all of his rights were explained to him as evidenced by his signature in more than one instance during his application.  Accordingly, his contentions are not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of the charges against him and his undistinguished record of service. His service simply does not rise to the level of honorable or under honorable conditions.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20120003541





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ABCMR Record of Proceedings (cont)                                         AR20120003541



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