IN THE CASE OF: 

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120008887 


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

2.  The applicant states he believes he was unjustly discharged as a result of a fight with civilian personnel.  He contends that he was the subject of discrimination because his rank was higher than the others who were involved.  He was trying to avoid the situation, but it was beyond his control and he left when the civilians started to chase after him.  He contends that he did not participate in any violence.

3.  The applicant provides no additional documentation.

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 14 January 1976, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 45K (Tank Turret Repairman).

3.  On 27 October 1976, the applicant accepted nonjudicial punishment (NJP) for being drunk while on duty as an assistant driver of a 5-ton wrecker.

4.  On 12 March 1979, the applicant was promoted to sergeant, pay grade E-5.

5.  On 14 June 1979, the applicant accepted NJP for failing to go to his appointed place of duty.

6.  On 1 September 1981, charges were preferred under the Uniform Code of Military Justice (UCMJ) for the applicant's actions on 14 August 1981, in violation of:

	a.  Article 128 for assault on a German national with a knife by repeatedly cutting him on his leg and upper body and hitting him with his fists and feet, and throwing a metal waste basket at him; and

	b.  Article 134 for being disorderly in a public place.

7.  On 25 November 1981, charges were preferred under the UCMJ for the applicant's actions on 24 November 1981, in violation of:

	a.  Article 134 for being disorderly in a public place; and

	b.  Article 91 for assault on his senior noncommissioned officer (NCO) who was then in the execution of his office.

8.  On 14 December 1981, 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 a UOTHC discharge, and of the procedures and rights that were available to him.

9.  In his request for discharge, the applicant indicated that 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.  On 18 December 1981, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC Discharge Certificate.  On 7 January 1982, the applicant was discharged accordingly.  He had completed a total of 5 years, 11 months, and 24 days of creditable active duty service.

11.  On 29 November 1982, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a  Chapter 10 states 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 trial by court-martial.  A discharge UOTHC is normally considered appropriate.

   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.  

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

   a.  Article 91 for assault on a senior NCO is a punitive discharge and 5 years confinement; and
   
   b.  Article 134 for assault with dangerous weapon is a punitive discharge and 5 years confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to general because it was unjust.  He contends that he did not participate in any violence.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  When he requested discharge he admitted guilt to the charges.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
3.  The evidence of record clearly shows that the applicant was charged with multiple offenses of such a serious nature as could have resulted in a punitive discharge and as much as 5 years of confinement per charge.  It appears he requested an administrative discharge to avoid such prosecution.

4.  The applicant has not provided any documentary evidence to substantiate his contention that his discharge is unjust or that he was the subject of discrimination.

5.  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)                                         AR20120008887





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ABCMR Record of Proceedings (cont)                                         AR20120008887



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