IN THE CASE OF:	

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120006714 


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 upgrade of his undesirable discharge.

2.  The applicant states:

* the options given to him for discharge were court-martial or a dishonorable discharge
* he had a family to consider so he took the discharge
* no one wanted to help him with the situation
* once at the brigade level no one wanted to deal with it
* he needs his discharge upgraded to receive Department of Veterans Affairs (DVA) benefits

3.  In a letter, dated 17 February 2012, he states:

	a.  In 1975, while stationed in Germany he was babysitting for some friends.   He was playing with their son and the boy ran toward him and his reaction was to stick his foot up in the air to stop the child from running into him.  At the time this happened, the boy did not complain of any pain.  It was after he had returned back home with his parents he started to complain of his stomach hurting.  The child was seen by a physician and it was stated in his attempt to protect the young child he may have inadvertently caused the injury that the child suffered.

	b.  He is truly sorry for this action if this is really what caused the injury.  He had two children of his own and he never physically hurt any of his own children or anyone else's. 
	c.  He believes he was wrongly discharged and he has letters from two commanding officers that state they did not agree with the Major General (MG) at the time this was determined.  He believes the reason for the undesirable discharge was due to the fact the MG was being assigned to a different division and he was in a hurry to get it off of his desk.

4.  The applicant provides:

* Letters, dated 20 March 2012 and 11 June 2012, from a Member of Congress
* VA Form 9 (DVA Appeal to Board of Veterans' Appeal)
* Discharge packet
* Letter of Commendation
* Certificate of Achievement
* Letter, dated 17 February 2012, from his wife

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 on 19 February 1969 for a period of 3 years.  He completed his training and was awarded military occupational specialty 51A (Construction and Utilities Worker).  On 22 October 1969, he was honorably discharged for immediate reenlistment.  On 23 October 1969, he reenlisted for a period of 4 years.  He served in Vietnam from 24 October 1970 to 25 October 1971.  On 6 July 1971, he was honorably discharged for immediate reenlistment.  He reenlisted on 7 July 1971 for a period of 5 years.  

3.  Between 24 March 1972 and 7 July 1972, nonjudicial punishment (NJP) was imposed against the applicant on three occasions for failing to go at the time prescribed to his appointed place of duty.

4.  He arrived in Germany on 28 March 1974.
5.  On 4 March 1976, charges were preferred against the applicant for unlawfully striking a child under the age of 16 in the abdomen with his foot and committing an assault upon a child under the age of 16 by kicking him in the abdomen with a force likely to produce grievous bodily harm.  Trial by special court-martial was recommended.

6.  On 15 April 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he had been in the Army for over 7 years and was serving in the grade of specialist five
* he served in two campaigns in Vietnam
* his attorneys told him the investigation disclosed that medical evidence could show that in his attempt to protect the young child he might have inadvertently caused the injury he suffered and, if this is so, he is sorry for his actions
* he requested a general discharge

7.  On 11 May 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  On 1 June 1976, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 7 years, 3 months, and  13 days of total active service.

9.  He provided a letter, dated 17 February 2012, from his wife who attests:

* She was not married to the applicant at the time of the incident
* She has been married to him for 31 years and they have one daughter and three grandchildren
* He has been a very caring husband, father, and grandfather
* He has never raised a hand to or injured any of them in any way
* He babysits for his grandchildren

10.  He also provided several letters of support from fellow Soldiers attesting they had never seen him abuse/mistreat any children.

11.  In October 1995, the Army Discharge Review Board denied his request for a discharge upgrade.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

13.  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.

14.  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 wants his discharge upgraded so he can obtain medical benefits.  However, a discharge is not changed for the purpose of obtaining DVA benefits.


2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

3.  His record of service during his last enlistment included three NJPs and serious offenses against a child under the age of 16.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20120006714





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ABCMR Record of Proceedings (cont)                                         AR20120006714



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