IN THE CASE OF:  

		BOARD DATE:  28 July 2015	  

		DOCKET NUMBER:  AR20140020360 


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 under other than honorable conditions discharge.

2.  The applicant states given the nature of the offense, this should have been no worse than a general, under honorable conditions discharge.  He requested to be provided records of the reasons and bases for his discharge from the National Personnel Records Center.  He had been in conflict with an individual who constantly harassed him, damaged his property including his car, and spit on him.  There was an element of racial prejudice in his behavior.  Eventually, they got into a major confrontation and a fight and he seriously injured him.  This led to the court-martial charges against him.  He feels that although he was somewhat at fault, this should not have been an under other than honorable conditions discharge. 

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 a 4-year term on 18 October 1979 and he held military occupational specialty 62E (Heavy Construction Equipment Operator).  

3.  He attained the rank/grade of private/E-2 and he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

4.  He was assigned to the 522nd Engineer Company, 19th Engineer Battalion, 194th Armored Brigade, Fort Knox, KY. 

5.  On 22 July 1980, court-martial charges were preferred against him for violating the Uniform Code of Military Justice (UCMJ): 

* failing to go at the time prescribed to his appointed place of duty 
* breaking restriction
* wrongfully urinating in public
* fraudulently filing a claim against the United States 
* attempting to steal government funds
* willfully disobeying a lawful order 

6.  On 2 August 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense 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 the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service
* he did not elect to submit a statement on his own behalf 

7.  On 21 and 27 August 1980, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander stated it is best to "get this man out as soon as possible."  His intermediate commander stated "I feel there is no possibility of rehabilitation." 

8.  On 8 September 1980, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant receive an under other than honorable conditions discharge with reduction to the lowest enlisted grade.  The applicant was discharged on 16 September 1980. 

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 10 months and 29 days of active service during this period. 

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

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, a discharge under other than honorable conditions 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.  It 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 an offense 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.  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.

2.  None of the charges or specifications he was charged with pertained to a fight or confrontation with another individual.  The charges range from the less serious of failing to go at the time prescribed to his appointed place of duty, breaking restriction, wrongfully urinating in public, and disobeying a lawful order to the more serious of fraudulently filing a claim against the United States and attempting to steal government funds.  

3.  There is no evidence in the records and he provides none to support his contention that his charges were related to racial prejudice.  The evidence of record clearly shows the applicant was advised of his rights by legal counsel and he indicated that he knew the implications of his decision.  No statement was provided by the applicant to raise any issues during the separation process.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading his 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)                                         AR20140020360



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ABCMR Record of Proceedings (cont)                                         AR20140020360



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