IN THE CASE OF: BOARD DATE: 23 October 2008 DOCKET NUMBER: AR20080010696 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 that his under other than honorable conditions discharge be upgraded to honorable. 2. The applicant states, in effect, that the incident which led to his discharge was due to his efforts to defuse some friends who were drunk and he got caught up in the fracas. He contends that his unit commander was relieved of his command and the new commander transferred him to the Mannheim military jail. He did not have access to a defense counsel for 2 months, and the counsel told him that he [the counsel] worked for the unit commander and not the applicant. All the witnesses to the incident were conveniently unavailable. The unit commander only offered him one deal – to take an under other than honorable conditions discharge. Since he already had a civilian job lined up at General Motors, he agreed to the discharge. 3. The applicant provides a copy of his Social Security Identification Card. 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. On 14 November 1979, the applicant enlisted in the Regular Army for a period of 4 years. He was trained in, awarded, and served in military occupational specialty (MOS) 63H (Track Vehicle Repairman). He attained the grade of specialist/E-4. 3. On 12 April 1982, the applicant was charged with 3 specifications of assault and battery and 2 specifications of communicating a threat. A review of three witness statements associated with the case shows that the applicant was involved with committing an assault upon three different Soldiers in concert with other Soldiers. The witnesses clearly stated that the applicant repeatedly hit, pushed, kicked the other Soldiers with the intent to inflict grievous bodily harm. One Soldier had his eardrum ruptured. The applicant then threatened to kill two other Soldiers if they said anything to anybody about what happened. 4. On 28 June 1982, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10. 5. The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army 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 a discharge under other than honorable conditions. 6. On 28 June 1982, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge. 7. Accordingly, the applicant was discharged on 9 July 1982 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions discharge. He was credited with 2 years, 7 months, and 26 days of total active service. 8. 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 a discharge for the good of the service in lieu of trial by court-martial. The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 9. 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 (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. 10. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 11. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. DISCUSSION AND CONCLUSIONS: 1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no evidence of arbitrary or capricious actions by the command, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. The applicant's contentions were noted; however, the evidence clearly shows that the witnesses were available to provide statements and all the statements indicated that the applicant was directly involved in the assault and battery of three Soldiers and that the applicant communicated a threat towards two other Soldiers. Further, the applicant voluntarily requested separation from the Army under the provisions of Army Regulation 635-200, chapter 10. By doing so, he admitted guilt to the charges against him. 3. Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The applicant has not provided sufficient mitigating evidence to warrant a change in his type of discharge. Therefore, there is no justification to upgrade his discharge to an honorable or general discharge. 4. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement. 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. XXX _______ _ _______ ___ 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) AR20080010696 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080010696 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1