IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120018569 


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 an upgrade of his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he feels the record is unjust.  He served his 3-year enlistment and he was going to receive a court-martial for something he didn't do a week prior to his discharge date.  He subsequently accepted discharge under  chapter 10 instead of taking his chances with a trial he knew he couldn't win.  He further states he was unaware of the consequences of his discharge and had no idea he would lose his Department of Veterans Affairs (VA) benefits.  He feels he was a victim of racial prejudice and believes he should receive an honorable discharge.

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 enlisted in the Regular Army on 17 March 1977.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).

3.  Special Court-Martial Order Number 8 published by Headquarters, 3d Brigade, 101st Airborne Division (Air Assault), Fort Campbell, KY, dated 4 April 1978, shows the applicant pled guilty and he was found guilty of violating Article 86, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on or about 15 February 1978.  In addition, the applicant pled guilty and he was found guilty of violating Article 128, UCMJ, for unlawfully striking an individual on the face with his closed fist on or about 22 January 1978.  On 22 March 1978, the following sentence was adjudged:

* reduction to private/E-1
* forfeiture of $262.00 pay per month for 2 months
* confinement at hard labor for 2 months (suspended for 6 months)

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on 23 June 1978 for:

* leaving his appointed place of duty on 12 and 13 June 1978
* using disrespectful language toward a superior noncommissioned officer on 12 June 1978

5.  The applicant received NJP under the provisions of Article 15, UCMJ, on 28 August 1979 for assaulting a superior noncommissioned officer by grabbing him on the wrist and striking him on the head with his fist on 12 August 1979.

6.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged for the good of the service in lieu of trial by court-martial on 19 May 1980 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an under other than honorable conditions character of service.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 and he completed a total of 3 years, 1 month, and 13 days of creditable active service with 31 days of lost time during this period.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge is normally considered appropriate. 

9.  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.

10.  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 request to upgrade his discharge under other than honorable conditions to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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.  The applicant would have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His record is void of any evidence and he has not provided any evidence which shows he was ever the victim of racial prejudice while serving in the Army.

4.  Notwithstanding the applicant's desire to obtain VA benefits, this argument alone is not a basis for upgrading a discharge.  Therefore, the applicant is not entitled to 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 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)                                         AR20120018569



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ABCMR Record of Proceedings (cont)                                         AR20120018569



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