BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140008480 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he has little memory of the events that led to his discharge but he accepts responsibility for his actions.  He has come to terms with his past; he hopes to access veterans benefits and enroll in alcohol and chemical dependency programs in order to better his life and not become a burden to his family.

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 6 April 1979.  On 3 September 1979, he was assigned to the 33rd Chemical Detachment, Fort Carson, CO.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 4 September 1979, for one specification of stealing merchandise from the Post Exchange
* 15 May 1980, for one specification of disobeying a lawful order and two specifications each of failing to report to his appointed place of duty at the prescribed time

4.  On 14 October 1980, he was assigned to the 10th Chemical Detachment, Germany.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 6 March 1981, for one specification each of wrongfully engaging in a fist fight, assaulting a Soldier by striking him with a bunk adapter, and for wrongfully communicating a threat by brandishing a knife and telling the Soldier he was going to kill him
* 5 June 1981, for one specification each of failing to report to his appointed place of duty and for being absent without leave (AWOL) from his assigned unit

5.  On 22 July 1981, court-martial charges were preferred against him for one specification each of:

* unlawfully grabbing a Soldier around the throat with his hands and pushing him into a wall locker
* unlawfully striking a Soldier in the mouth with his fist
* assaulting a Soldier by swinging at him with his fist
* assaulting a Soldier by grabbing him around the body with his arms and striking him in the back with a piece of glass likely to produce grievous bodily harm
* wrongfully communicating a threat to a Soldier by telling him he would kill him and throw him out the window when he went to sleep

6.  The 23 July 1981 additional court-martial charges were preferred against him:

   a.  For one specification each of:

* wrongfully hiding in a closet and peering through a vent into a wall of the female shower that was occupied by a female Soldier
* wrongfully communicating a threat to a Soldier by telling her he would kick her ass
* wrongfully communicating a threat to a Soldier by telling her that's the way people get seriously hurt

b.  Two specifications each of wrongfully appearing with the wrong insignia displayed on his uniform and for disobeying a lawful order.

c.  Four specifications each of failing to go to his appointed place of duty.

7.  On 25 July 1981, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge 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.

8.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He declined to submit a statement in his own behalf.

9.  On 30 July 1981, his immediate commander recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  His intermediate and senior commanders subsequently recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 13 August 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 28 August 1981, he was discharged accordingly.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service. 

12.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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 included 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.  An under other than honorable conditions discharge was normally considered appropriate.

14.  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.

15.  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 evidence of record confirms the applicant was charged with the commission of offenses 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. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable 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)                                         AR20140008480





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ABCMR Record of Proceedings (cont)                                         AR20140008480



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