IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120004913 


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 his under other than honorable conditions discharge be upgraded to honorable.  

2.  The applicant states he completed his first two enlistments honorably; however, on his last enlistment he received an under other than honorable conditions discharge.  He and four other Soldiers were accused of fighting with another enlisted person.  He hung out with the gentlemen who were directly involved in the fight while he was stationed in Korea.  When the fighting started he tried to stop the person who started the fight.  When he was unsuccessful in his attempts to stop the fight he ran to the barracks and informed a staff sergeant (SSG), the senior enlisted person, of the fight.  The SSG said he was involved in the fight and he was told to choose between a court-martial or taking a discharge under chapter 10 of Army Regulation 635-200 (Enlisted Separations).  Everyone involved in the fight was offered a chapter 10 in lieu of a court-martial.  He was young and scared at the time and chose to take the chapter 10. 

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.  The applicant was born on 6 August 1963 and enlisted in the Regular Army on 28 May 1981 at 17 years of age.  He held the military occupational specialty 71L (Administrative Specialist).  

3.  His record contains a DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)), dated 15 September 1989.  This form shows, effective 25 August 1989, a FLAG was imposed for adverse action pending the results of a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigation.

4.  His record contains a DD Form 458 (Charge Sheet), dated 30 October 1989, wherein he was charged with three offenses:

	a.  Charge one, specification one, at Camp Humphreys, Korea, on or about 24 August 1989, conspiracy to commit assault with a means or force likely to produce death or grievous bodily harm on Private First Class (PFC) MJW by striking him with closed fists and shod feet.

	b.  Charge one, specification two, states at Camp Humphreys, Korea, on or about 24 August 1989, conspiracy to commit assault with a means or force likely to produce death or grievous bodily harm on Specialist (SPC) RLM by striking him with closed fists and shod feet.

	c.  Charge two, specification one, states at Camp Humphreys, Korea, on or about 24 August 1989, he committed assault upon PFC MJW by pushing him to the ground and by striking and kicking him on the head and body with closed fists and shod feet, a means and force likely to produce death or grievous bodily harm.

	d.  Charge two, specification two, states at Camp Humphreys, Korea, on or about 24 August 1989, he committed assault upon SPC RLM by pushing him to the ground and by striking and kicking him on the head and body with closed fists and shod feet, a means and force likely to produce death or grievous bodily harm, and thereby did intentionally inflict grievous bodily harm upon him in the form of a broken nose and contusions.

	e.  Charge three, specification one, states at Camp Humphreys, Korea, on or about 26 August 1989, in an affidavit, he wrongfully and unlawfully made and subscribed under lawful oath a false statement, wherein he stated, "I can't describe the guys who grabbed the guy from behind," or words to that effect, when he knew and believed this statement to be false.

5.  On 23 February, he consulted with legal counsel was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an other than honorable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In this request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He elected not to submit a statement in his own behalf.

7.  On 6 March 1990, the separation authority approved his 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, with an under other than honorable conditions discharge.

8.  Accordingly, on 28 March 1990 he was discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 8 year, 10 months, and 1 day of creditable active service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 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 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.

	c.  Paragraph 3-7b states 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 argument that he previously completed two enlistments honorably and only accepted a chapter 10 discharge because he was young and scared is noted.  

2.  His record shows he was charged with conspiracy to commit an assault, assault, and making a false official statement, offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  Based on his record of indiscipline during his last enlistment, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

4.  He contends that his discharge should be upgraded because he was young and afraid at the time of his service.  However, records show that he was 26 years of age at the time of his offenses and had previously completed two enlistments.  Further, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service, in fact, he was a seasoned Soldier.

5.  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)                                         AR20120004913





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ABCMR Record of Proceedings (cont)                                         AR20120004913



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