IN THE CASE OF:	  

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20120006377 


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, in effect:

* his under other than honorable conditions (UOTHC) discharge be upgraded
* his medical issues be acknowledged

2.  The applicant states when he was confined at the Philadelphia Naval Brig, he was kicked and beaten by Army and Navy military police (MPs).  He wants the Army to acknowledge this and upgrade his discharge so that he might receive Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides:

* a written note
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a copy of his UOTHC Discharge Certificate

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 for 3 years on 16 October 1978 and was transferred to the U.S. Army Reception Station, Fort Jackson, SC.  His record then shows the following:

* absent without leave (AWOL) from Fort Jackson during the period 17 October 1978 through 27 November 1978
* returned to military control (RMC) at Fort Meade, MD on 28 November 1978
* transferred to the U.S. Army Personnel Control Facility (PCF), Fort Dix, NJ on 4 December 1978
* AWOL during the period 4 December 1978 through 17 March 1979
* RMC at Fort Dix on 18 March 1979
* AWOL during the period 5 June 1979 through 15 July 1979
* RMC at Fort Dix
* alleged to have committed forcible oral and anal sodomy on a male private on or about 21 July 1979
* placed in pre-trial confinement a Philadelphia Naval Brig on 31 July 1979; charges preferred for three periods of AWOL, two specifications of sodomy, and one specification of communicating a threat
* scheduled for trial on 17 October 1979; escaped from confinement on 16 October 1979
* AWOL 17 October 1979 to 22 December 1980

3.  During the applicant's last period of AWOL from 17 October 1979 through 22 December 1980, he was arrested by civil authorities in the District of Columbia on 12 March 1980 and charged with first degree burglary, assault, and destruction of property.  Found not guilty of all charges by reason of insanity, he was committed by court order to St. Elizabeth's Hospital, Washington, D.C.

4.  The applicant was RMC and transported to Fort Dix on or about 18 December 1980.  He then filed and obtained a writ of habeas corpus seeking his return to civilian jurisdiction.  In a decision dated 8 February 1982, as amended on 12 May 


1982, the United States Court of Appeals, Third Circuit, reversed the writ of habeas corpus and vacated the stay of court-martial proceedings.

5.  On 17 February 1982, the applicant, following consultation with legal counsel, requested discharge for the good of the service in lieu of trial by court-martial.  He did not submit a statement with his request.

6.  The applicant's company commander and PCF commander recommended disapproval of the applicant's request; however, the approving authority approved the request on 3 March 1982 and directed issuance of a UOTHC discharge.  The applicant was so discharged on 5 March 1982.

7.  There is no evidence in his DA Form 201 file, and the applicant has provided no evidence, to show that he suffered abuse by MPs while in the Philadelphia Naval Brig.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 26 June 1984, denied his request. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC is normally considered appropriate.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.

	b.  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 requests a discharge upgrade in order to become eligible for DVA benefits.  As a part of that request, he contends he was abused by MPs while in confinement.

2.  The applicant enlisted and reported for active duty on 16 October 1978; on 17 October 1978, he went AWOL.  Thereafter, his record consists of one lengthy AWOL after another.  When he finally did RMC at Fort Dix, he was assigned to the PCF awaiting court-martial charges.  At that time, he is alleged to have committed forcible sodomy on a male private.  When these offenses became known, he was placed in pre-trial confinement and charges were preferred.

3.  The day before he was to be tried, he escaped from confinement.  While AWOL, he was apprehended by civil authorities and charged with first degree burglary, assault, and destruction of property.

4.  When he was RMC in February 1982, the charges were once again preferred and, after consulting with counsel, he sought discharge for the good of the service in lieu of trial by court-martial.  The record shows discharge proceedings were conducted in accordance with law and regulations applicable at the time.  He had the opportunity to make a statement explaining the treatment he received from the Army and Navy MPs at the time he requested discharge, but he failed to take that opportunity.  The character of the discharge is commensurate with his overall record of military service.

5.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial conviction and the punitive discharge that he might have received.

6.  The ABCMR does not upgrade discharges for the purpose of qualifying for DVA benefits.

7.  In view of the forgoing, there is no basis for granting the applicants request.


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)                                         AR20120006377





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ABCMR Record of Proceedings (cont)                                         AR20120006377



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