IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016744 


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 undesirable discharge (UD).

2.  The applicant states he was found guilty of assault on officers when in fact he was the one assaulted by the officers.  He was defending himself.  He was exonerated by the chapter 10 board but overturned by the battalion commander. He was then offered a chapter 10 discharge.  He took the discharge because he could not get a transfer.  He went before a 3-person panel and after all testimony from all witnesses, including the charge of quarters runner, they recommended dropping all the charges.  He was sent back to jail and offered a chapter 10 discharge.  This should be in his records and should also be made public.  

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army for 3 years on 27 January 1971.  He was trained in and held military occupational specialty 12A (Pioneer).  He served in Germany from on or about 30 June 1971 to on or about 23 April 1973.  He was awarded or authorized the National Defense Service Medal. 

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 18 January 1972, willfully disobeying a lawful order from a superior noncommissioned officer on two separate occasions
* 7 July 1972, being absent without authority on 5 July 1972 
* 2 October 1972, failing to go at the time prescribed to his appointed place of duty and being absent without authority from 30 September to 1 October 1972 

4.  On 24 February 1973, following an Article 32 hearing for various charges and specifications, his unit commander, Article 32 investigator, summary court-martial convening authority, and special court-martial convening authority all recommended his trial by a general court-martial.  

5.  On 24 February 1973, general court-martial charges were preferred against the applicant for:

* one specification of behaving himself with disrespect toward a superior commissioned officer
* one specification of drawing a weapon against a superior commissioned officer who was in the execution of his duties
* one specification of offering violence to a superior commissioned officer who was in the execution of his duties 
* three specifications of willfully disobeying a lawful command from a superior commissioned officer 
* one specification of wrongfully using provoking words and gestures
* one specification of wrongfully possessing morphine
* one specification of wrongfully assaulting a superior commissioned officer with a knife

6.  On 16 March 1973, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, he acknowledged he understood:

* he was making this request of his own free will and had not been subjected to any coercion with respect to this discharge and he was also advised of its implications
* if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* 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
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf

7.  On 30 March and 2 April 1973, the applicant's immediate, intermediate, and senior recommended disapproval of the discharge action with the issuance of an Undesirable Discharge Certificate.  His chain of command recommended trial by a general court-martial empowered to adjudge a bad conduct discharge or a dishonorable discharge.  

8.  On 4 April 1973, the discharge action was reviewed by the 3rd Infantry Division Staff Judge Advocate.  He found it legally sufficient and recommended approval of the discharge action.  

9.  On 4 April 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  He also ordered an escort to remain with the applicant until he boarded the plane at the Rhein Main area of embarkation.  

10.  On 25 April 1973, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 2 years, 2 months, and 7 days of active service during this period and he had lost time from 27 December 1972 to 7 January 1973. 

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

12.  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, a UD is normally considered appropriate.

	a.  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

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant's contention that he was defending himself against the officer is not supported by any evidence.  There would have been other legitimate avenues to address such issues had he elected to use them.  Additionally, he could have also elected trial by the general court-martial if he had believed there were extenuating circumstances that led him to assault the officer. 
3.  Contrary to his belief that he was exonerated of the charges or absolved from wrongdoing, the evidence of record clearly shows that after the Article 32 hearing confirmed the wrongdoing, court-martial charges were preferred.  Additionally, following the Article 32 hearing, his unit commander, the Article 32 officer, the summary court-martial convening authority, and the special court-martial convening authority all recommended trial by a general court-martial empowered to adjudge a dishonorable or a bad conduct discharge due to the seriousness of the multiple specifications with the statement of charges. 

4.  Also contrary to his contention, the chain of command, including the immediate, intermediate, and senior commanders, all recommended disapproval of the voluntary discharge action and recommended trial by the general court-martial.  This was also clearly a result of the seriousness of the charges. 

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he 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 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)                                         AR20140016744



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ABCMR Record of Proceedings (cont)                                         AR20140016744



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