IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130021193 


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 characterterization of service and his reason for discharge.

2.  The applicant states, in effect, he was the victim of physical and emotional abuse.  He was assaulted by his drill sergeant (SGT) and he retaliated by beating up his drill SGT.  After this incident his contract was breached in a manner that constituted conspiracy, fraud, and ethics violations.  He wants his story heard.  

3.  The applicant provides a letter from the Department of Veterans Affairs (VA), dated 21 October 2013.

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 30 September 1971 and held military occupational specialty 13A (Field Artillery Basic).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  His DA Form 20 (Enlisted Qualification Record) shows, after completing basic combat and advanced individual training, he was assigned to Germany from 
28 July 1972 to 25 May 1973.  During this assignment he served with:

* Headquarters and Headquarters Battery, 2nd Battalion, 78th Artillery, 1st Armored Division from 3 August 1972 to 6 September 1972
* Battery A, 78th Artillery, 1st Armored Division from 7 September 1972 to 25 May 1973

4.  His record contains two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), showing he accepted non-judicial punishment (NJP):

* On 18 August 1972, for failure to go to his appointed place of duty and leaving his post before he was properly relieved
* On 10 November 1972, for being disrespectful in language toward a noncommissioned office (NCO), SGT JRH, by saying "Fxxx you" and "You're a prejudice [sic] son of a bxxxx" 

5.  His record contains a Letter of Reprimand (LOR), dated 6 November 1972, showing he was reprimanded for participating in an illegal assembly.

6.  His record contains a DD Form 458 (Charge Sheet), dated 17 February 1973 showing court-martial charges were preferred against him for:

* Willfully disobeying the lawful order of a commissioned officer, his executive officer, to "be at ease"
* Willfully disobeying the lawful order of a commissioned officer, his company commander, to "come here"
* Being disrespectful in language to an NCO, his first sergeant (1SG), by calling him a "peanut head"
* Disobeying the lawful order of an NCO
* Willful destruction of government property by breaking a window with his hand
* Unlawfully striking a specialist six on the right side of the face with his fist
* Unlawfully striking a specialist four on the jaw with his fist
* Unlawfully striking and kicking a private first class on the face and groin with his closed fist and shod foot
* Unlawfully striking and kicking a private in the head and body with his fists and combat boot

7.  On 17 April 1973, he voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service in lieu of trial by court-martial.  He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ which authorized the imposition of a bad-conduct or dishonorable discharge.  

	a.  He stated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also stated he had been advised of the implications attached to his request for discharge.  He acknowledged that prior to completing his request for discharge he consulted with counsel and that he understood that, if his request for discharge was accepted, he could be furnished an Undesirable Discharge Certificate.  

	b.  He also acknowledged he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

8.  On 2 May 1973, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an undesirable discharge.  Accordingly, he was discharged on 30 May 1973.

9.  His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service and he received an undesirable discharge.  He completed 1 year, 8 months, and 1 day of creditable active military service.

10.  On 7 August 1981, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence determined he was properly discharged and denied his request for an upgrade.


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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, an undesirable discharge was normally considered appropriate at the time.  

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  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.

2.  His contract was not breached.  Court-martial charges were preferred against him and he elected/requested a chapter 10 discharge rather than face a court-martial.  He made a choice and the evidence of this choice negates the argument that his contract was breached as a result of a conspiracy, fraud, or ethics violations.

3.  There is no evidence the applicant was ever the victim of verbal or physical abuse.  However, as illustrated by the court-martial charges preferred against him, there is much of evidence to show he verbally and physically abused others, more individuals than just a drill sergeant. 

4.  His record contains a history of failing/refusing to obey orders, disrespecting officers and NCOs, and the verbal/physical abuse of his fellow Soldiers.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  

5.  In view of the foregoing, there is an insufficient evidence to justify changing the basis of his separation or upgrading his characterization of service to an honorable or a general discharge in this case.

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)                                         AR20130021193



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ABCMR Record of Proceedings (cont)                                         AR20130021193



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