IN THE CASE OF:	  

		BOARD DATE:	  	  16 December 2008

		DOCKET NUMBER:  AR20080014946 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, he was 17 years old and on pass with five other enlisted Soldiers when they returned to base after curfew.  He also states that the "C/O" [acronym unknown] released two of the Soldiers (both of whom were white) to return to the barracks; however the "C/O" retained him and the two other Soldiers (all of whom were black).  The applicant further states that they received 2 weeks of restriction; however, he verbally protested and was physically assaulted by the two "C/O’s" which resulted in him being placed in the stockade.  He adds that a few weeks later he was seen by a lawyer who coerced him into signing a plea that he did not understand.  The applicant concludes by stating there was racial bias in his case and this is the only opportunity he has had to express his side of the story.

3.  The applicant provides a self-authored statement, undated.

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 military personnel records show that he enlisted in the Regular Army and entered active duty for a period of 3 years on 12 August 1971.  The applicant’s records also show his date of birth is 15 September 1952 and at the time of his entry on active duty he was 18 years of age.  On 13 August 1971, he was assigned to Company B, 4th Battalion, 1st Brigade, Fort Ord, California.  The applicant’s records show that he completed basic combat training and was awarded military occupational specialty 09B (Trainee).  The applicant’s records are absent evidence that he completed advanced individual training.

3.  The applicant's military personnel records are absent a complete copy of his administrative separation packet.

4.  The applicant's military personnel records contain a Standard Form (SF) 93 (Report of Medical History), dated 20 October 1971, that was completed by the applicant at the time of his medical examination based on his separation under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations Enlisted Personnel).  Item 8 (Statement of Examinee’s Present Health and Medications Currently Used) of this document contains the handwritten statement, "I am in perfect condition" and also shows the applicant placed his signature on the document.

5.  The applicant's military personnel records contain an SF 88 (Report of Medical Examination), dated 20 October 1971.  This document shows that the examining physician reviewed the applicant’s medical records and examined the applicant and found him qualified for separation under the provisions of Army Regulation 635-200, chapter 10.

6.  The applicant's military personnel records contain a DA Form 3082-R (Statement of Medical Condition), dated 2 November 1971, that shows the applicant placed a checkmark in the block indicating "there has been no change in my medical condition" and he also placed his signature on the document.

7.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).  Item 38 (Record of Assignments) shows the applicant was assigned to Company B, 4th Battalion, 1st Brigade, Fort Ord, California, effective 13 August 1971, and that he received an Undesirable Discharge on 18 November 1971.
8.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Training Center, Infantry and Fort Ord, Special Orders Number 320, dated 16 November 1971.  These orders show that the applicant was discharged under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, chapter 10, with a separation program number (SPN) 246 and issued a DD Form 258A (Undesirable Discharge Certificate).

9.  The applicant's military personnel records contain his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows           he entered active duty on 12 August 1971 and was discharged on 18 November 1971 under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the service with the SPN 246 and issued a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 also shows that at the time of his discharge the applicant had completed 3 months and 7 days of net active service this period.

10.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

13.  Army Regulation 635-5-1 (SPN) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It identifies the SPN of 246 as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

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, 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.

16.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge under other than honorable conditions should be upgraded because he was only 17 years of age at the time of the incident in question, there was racial bias involved in his case, and he was coerced into signing a plea that he did not understand.

2.  Records show the applicant was 18 years of age when he entered active duty and 19 years of age when his request for discharge for the good of the service was submitted to the separation authority.  However, there is no evidence that indicates the applicant was 17 years of age during his military service or that he was any less mature than other Soldiers of the same age who successfully completed their military service during this period.

3.  There is no evidence of record, and the applicant provides insufficient evidence, to support his claim that there was racial bias involved in the incident he describes in his statement, in the processing of the charges against him, or in the processing of his request for discharge for the good of the service.

4.  There is no evidence of record and the applicant offers insufficient evidence to support his claim that there was coercion by the legal counsel involved in providing legal advice with respect to his pending trial by court-martial or in the processing of his request for discharge for the good of the service.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, chapter 1 (General Provisions), which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Thus, in the absence of evidence to the contrary, the presumption is the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

6.  The evidence of record shows the applicant failed to complete advanced individual training when he submitted his request for discharge for the good of the service.  In addition, records show he completed only 3 months and 7 days of his 3-year enlistment.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly indicates that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit 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.



      ___________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)                                         AR20080014946



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ABCMR Record of Proceedings (cont)                                         AR20080014946



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