IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150004779 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 honorable. 2. He states it has been over 32 years since he was discharged unjustly. He explains he was severely beaten by three other service members in the barracks at Fort Ord, CA. Two days after the beating, he went after one of the perpetrators and he was arrested by military police. He states for several months leading up to his arrest, he consumed excessive amounts of alcohol and used marijuana and cocaine. He maintains that he was not represented well by council. He says he signed many papers and was told that everything would be worked out. However, that is not what happened and he ended up being the scapegoat and his perpetrators never faced any type of discipline actions. 3. He provides his self-authored statement. 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. After having prior service in the U.S. Army Reserve, on 27 October 1982, the applicant enlisted in the Regular Army. 3. On 23 June 1983, charges were preferred against him for: * leaving his appointed place of duty without authority on 19 May 1983 at 1700 hours * leaving his appointed place of duty without authority on 19 May 1983 at 2200 hours * being disrespectful in language to a superior noncommissioned officer (NCO) on 8 June 1983 * disobeying a lawful order from a superior NCO on 8 June 1983 4. The applicant's record is void of any evidence to show he was beaten by three Soldiers and/or his retaliation was the result of that altercation. 5. On an unknown date, the company commander requested that the applicant be placed in pretrial confinement. He said the applicant had a history of fighting, disobeying lawful orders, failure to repair, and communicating threats to fellow Soldiers and to his superior NCOs. He had demonstrated a total disregard for military authority. During his recent deployment to Panama, he had a problem with getting along with other Soldiers and following orders. He had a habit of urinating on the barracks floor and in the dryers at the barracks. He was also in debt to some Soldiers and openly stated that he had no intentions of repaying those debts. The final incident leading up to the necessary confinement was a physical altercation with another Soldier in which the applicant threatened to kill this Soldier with a piece of broken glass. He also assaulted him by striking him in the neck with his fist. The commander said he considered the applicant to be a threat to the community and to himself. 6. On 24 June 1983, he consulted with counsel and he voluntarily 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. 7. In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him. He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, 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 he could encounter substantial prejudice in civilian life. He elected not to submit a statement in his own behalf. 8. On 13 July 1983, the appropriate authority approved his request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 9. On 20 July 1983, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions characterization of service. It also shows he completed 8 months and 24 days of net active service during this period. 10. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade 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. a. 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. b. 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. c. 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. There is no evidence and the applicant has not provided any to show that he was beaten by three Soldiers and his altercation with one of those Soldiers was in retaliation for him being beaten. 2. The record shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. 3. His service does not appear to meet the standards of acceptable conduct and performance of duty for Army personnel. There is no evidence of error or injustice in the characterization of his service. 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) AR20150004779 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004779 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1