IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150011308 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150011308 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150011308 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 upgrade of his under other than honorable conditions (UOTHC) discharge. 2. The applicant states that: a. On 19 April 1980, he was on his way to the Wurzburger hof in Wildflecken, Germany, when he ran into a fellow Soldier who told him that everyone was gone because of a fight. When the applicant turned to walk home with the other Soldier they encountered a German national leaning against a street light pole on the corner (he was not there when the applicant crossed the street about a minute earlier). b. The German pulled a board from under his coat and hit the other Soldier across the face, so the applicant ran across and grabbed the other Soldier by the back of his belt and pulled him across against a white fence. That's when the German whistled and many of his friends came from between the surrounding houses with sticks and knives making many derogatory statements. c. The applicant told the German that he and the other Soldier were not bothering anybody and they just wanted to go. d. The applicant found a knife in the middle of the street and he "pulled it" to keep himself and the other Soldier alive. 3. The applicant did not provide any supporting documentation. 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 enlisted in the Regular Army on 20 February 1979. He held military occupational specialty 64C (Motor Transport Operator). 3. The available records show the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 (Uniform Code of Military Justice) on: a. 23 April 1979 for committing, in conjunction with three other Soldiers, an assault on another Soldier. b. 29 January 1980 for committing an assault on another Soldier by striking him with a belt. 4. His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in Germany from 18 June 1979 through 30 June 1980. He was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar. 5. On 22 April 1980, court-martial charges were preferred against the applicant for: a. one specification of murdering a foreign national by stabbing him in the chest with a switchblade knife. b. two specifications of stabbing two foreign nationals with a switchblade knife. c. one specification of violating a lawful general regulation by wrongfully possessing a switch blade knife. 6. He consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged he understood the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge. He acknowledged he understood he might receive a discharge under conditions other than honorable, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge. He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will. He indicated he would not submit a statement in his own behalf. 7. His chain of command recommended approval of the request for discharge with issuance of a UOTHC discharge. 8. On 10 June 1980 the separation authority approved the discharge request and directed the issuance of a UOTHC discharge. 10. On 30 June 1980 he was accordingly discharged. He had completed 1 year, 4 months, and 11 days of net active duty service. REFERENCES: Army Regulation 635-200 provides 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 at the time an undesirable discharge was 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: 1. The applicant's records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 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. 2. His request for a chapter 10 discharge shows he wished to avoid a court-martial and the punitive discharge he might have received for his numerous offenses. His service was appropriately characterized based on his misconduct. His misconduct rendered his service as unsatisfactory. He has provided no evidence indicating an injustice or an error occurred in the processing of his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011308 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011308 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2