PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 November 2001    
	DOCKET NUMBER:   AR2001060978

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions be upgraded to honorable and that he be awarded the Parachutist Badge.

3.  The applicant submitted two applications.  He states, in effect, that he feels the Army breached their contract with him because he was supposed to be under the protection of the Army.  He contends that he was attacked in his barracks by four others, sodomized during the attack and nothing was done about it.  He goes on to state that as a form of punishment incompetent leadership assigned him to the artillery to handle live rounds with no prior training.  He also contends that he was told his discharge would automatically be changed.  In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge form Active Duty); a letter, dated 16 August 2001, from the Review Boards Agency in St. Louis, Missouri; a letter, dated 2 August 2001, from a Member of Congress.  

4.  The applicant’s military records show that he entered active duty on 
11 September 1980.  He successfully completed basic and advanced individual training and was assigned to Fort Benning, Georgia, for airborne training.

5.  On 16 February 1982, nonjudicial punishment was imposed against the applicant for disobeying two lawful orders from his superior noncommissioned officer, being derelict in the performance of his duties and being drunk on duty.  

6.  The applicant went absent without leave (AWOL) on 25 October 1982 and returned to military control on 15 March 1983.  Charges were preferred against him on 15 March 1983 for being AWOL.

7.  On 16 March 1983, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the VA; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge.  Additionally, he indicated that he understood that there was no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he desires review of his discharge.  The applicant elected not to submit a statement in his own behalf.  

8.  The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be discharged under other than honorable conditions.

9.  On 8 April 1983, the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.

10.  Accordingly, the applicant was discharged under other than honorable conditions on 18 April 1983 under the provisions of Army Regulation 635-200, chapter 10.  He had served 2 years, 2 months and 18 days of total active service and had 141 days of lost time. 

11.  The applicant’s DD Form 214 does not show the Parachutist Badge as an authorized award.

12.  Headquarters U.S. Army Infantry Center Permanent Orders 35-7, dated 
24 February 1981, show the applicant was awarded the Parachutist Badge. 

13.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

15.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

CONCLUSIONS:

1.  The Board considered the applicant’s contentions that he was attacked in his barracks by four others, sodomized during the attack and nothing was done about it.  However, there is no evidence of record available to the Board, and the applicant has no evidence, to support these contentions.    

2.  The Board considered his contention that as a form of punishment incompetent leadership assigned him to the artillery to handle live rounds with no prior training.  However, there is no evidence of record to support this contention.

3.  The Board also considered the applicant’s contention that he was told his discharge would automatically be changed.  However, evidence of record shows that on 16 March 1983 the applicant indicated on his request for discharge that he understood that there was no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he desires review of his discharge.      

4.  The Board reviewed the applicant’s record of service which included one nonjudicial punishment and 141 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.  

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

6.  Accordingly, the type of discharge directed and the reasons for separation were appropriate considering all of the facts of the case.

7.  Evidence of record shows the applicant was awarded the Parachutist Badge on 24 February 1981.  Therefore, the applicant is entitled to correction of his military records to show this badge.  

8.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was awarded the Parachutist Badge.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

INW____  SK______  KAH_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Irene N. Wheelwright____
		        CHAIRPERSON

INDEX

CASE ID	AR2001060978	
SUFFIX		
RECON		
DATE BOARDED	20011115	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19830408	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	For the good of the service – in lieu of court-martial	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.	107.0120	
3.		
4.		
5.		
6.