IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080003489 


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 discharge.

2.  The applicant states that he was a good Soldier until he arrived in Germany where he encountered racism and had a language barrier that prevented him from fully understanding all the orders given to him.  He also adds that he was beaten up by two sergeants and was threatened by an officer, and that after having three beatings, he felt he could not risk losing his life, so he left.  He concludes that he knows it is hard to overturn his discharge without any evidence; however, he appeals to this Board to grant his request. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 December 1980, and a copy of his DD Form 215 (Correction to DD Form 214), dated 12 August 1985, in support of his application.

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 that he enlisted in the Regular Army for a period of 3 years on 9 April 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19F (Tank Driver).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant’s records further show he was awarded the Marksman Marksmanship Qualification Badge with Pistol Bar.  His records do not show any significant acts of valor during his military service.

4.  On 19 August 1979, the applicant departed his unit in absent without leave (AWOL) status.  He returned on 29 August 1979. 

5.  On 4 September 1979, the applicant was tendered a letter of reprimand for missing his flight through his own negligence, by failing to report at the proper place and time. 

6.  On 13 November 1979, the applicant departed his unit in AWOL status and was subsequently dropped from the Army rolls on 12 December 1979.  He was apprehended by civil authorities and returned to military control at Fort Sill, Oklahoma, on 18 October 1980. 

7.  On 4 November 1980, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 13 November 1979 through on or about 18 October 1980. 

8.  On 4 November 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 discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).


9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

10.  On 18 November 1980, the applicant’s immediate commander remarked that the applicant was unable to adjust to military life and that rehabilitation efforts were considered futile.  He further recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate. 

11.  On 1 December 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to PVT/E-1.  Accordingly, the applicant was discharged on 10 December 1980.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with an Under Other Than Honorable Conditions character of service.  This form further confirms the applicant had completed a total of 7 months and 29 days of creditable active military service and had 351 days of lost time. 

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its fifteen (15) year statute of limitations. 

13.  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.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he suffered discrimination or racism, or a language barrier, during his military service.  Additionally, there is no evidence in the available records and the applicant did not provide sufficient evidence showing that his act of indiscipline was the result of racism, discrimination, or difficulty understanding the language. 

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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       _    _______   ___
       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)                                         AR20080003489



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ABCMR Record of Proceedings (cont)                                         AR20080003489



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