BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120023056 


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

2.  The applicant states on 31 August 1985, his birthday, he was approached by a fellow Soldier (his sergeant (SGT)) who had been in a fight with another Soldier.  This Soldier asked him for his help.  He was afraid for this Soldier and himself.  He had just turned 18 years of age and this Soldier was 25 years of age.  This Soldier placed the blame on him and left the country.  He felt he had no chance in court.  He wants his discharge upgraded so he can attend school.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 14 June 1984.  At the time of his enlistment, he was 17 years and 10 months of age.  He completed training and he was awarded military occupational specialty 31K (Combat Signaler).  He was advanced to pay grade E-3 on 16 June 1985.

3.  A U.S. Army Criminal Investigation Command, Report of Investigation, dated 30 December 1985, stated that on 31 August 1985 a fellow Soldier, in the rank of SGT, angry over an earlier incident, tackled another Soldier and wrestled him to the ground.  The applicant then struck that Soldier on the back of the head with a rock in a manner likely to cause grievous harm, which in fact inflicted a scalp laceration approximately 30 millimeters in length.  

4.  On 30 January 1986, a DD Form 458 (Charge Sheet) was prepared by the Commander, Headquarters and Headquarters Company, 2nd Brigade, 9th Infantry Division, Fort Lewis, WA.  The applicant was charged with one specification of committing an assault consummated by a battery upon a fellow Soldier and committing an assault by striking the Soldier on the head with a rock, thereby intentionally inflicting grievous bodily harm upon the Soldier on 31 August 1985.

5.  On 30 January 1986, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished a bad conduct or dishonorable discharge and the results of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 3 February 1986, the applicant's company and battalion commanders recommended trial by special court-martial empowered to adjudge a bad conduct discharge.

7.  On 14 February 1986, the separation authority, a major general, approved the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.



8.  On 25 February 1986, he was discharged accordingly.  He completed 1 year, 8 months, and 12 days of net active service with no time lost.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation states in:

	a.  Chapter 10 - 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 - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.  

2.  His contention, in effect, that his youth impacted his misconduct is without merit.  He was 17 years and 10 months of age at the time of his enlistment and 19 years of age at the time of the offense.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10 are 
voluntary requests for discharge in lieu of court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  All requirements of law and regulation were met and the 
rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence that would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  His desire to have his discharge upgraded so that he can qualify for education benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for education and/or other benefits administered by the Department of Veterans Affairs.

7.  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)                                         AR20120023056



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ABCMR Record of Proceedings (cont)                                         AR20120023056


   
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