IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080015465 


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 to general, under honorable conditions. 

2.  The applicant states that he feels he should not have received an undesirable discharge.  He and his sergeant got into an argument at the time and the sergeant kicked him down the stairs and used a racial slur against him.  He adds that he (the applicant) knew that if he had stayed, he would have continued to be harassed by the sergeant and that he thought it was best for him to leave.  

3.  The applicant did not provide any additional documentary evidence 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 21 November 1972.  He completed basic combat training at Fort Jackson, South Carolina, and was subsequently assigned to Company C, 14th Battalion, 4th Advanced Individual Training (AIT) Brigade, also at Fort Jackson, for completion of military occupational specialty (MOS) training.  The highest rank/grade he attained during his military service was private (PV1)/E-1.

3.  The applicant's records further show he was awarded the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any special acts or achievements during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 19 April 1973, for being absent without leave (AWOL) during the period from on or about 12 April 1973 to on or about 17 April 1973.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and forfeiture of $71.00 pay for one month; and

	b.  on 14 June 1973, for being AWOL during the period from on or about
16 May 1973 to on or about 30 May 1973.  His punishment consisted of a forfeiture of $75.00 pay per month for 2 months, 14 days of restriction, and
14 days of extra duty.

5.  On 18 June 1973, the applicant departed his AIT unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 17 July 1973.  He remained in a DFR status until he was apprehended by civil authorities in Rockingham, North Carolina, and was returned to military control at Fort Jackson on 7 August 1973.

6.  On 7 August 1973, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 18 June 1973 to on or about 7 August 1973.

7.  On 7 August 1973, 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 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 under the provisions of Army Regulation 635-200, (Personnel Separations), chapter 10 for the good of the service in lieu of trial by court-martial.

8.  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 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. 

9.  On 8 August 1973, the applicant's immediate commander recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander remarked that the applicant had been AWOL on six different occasions and that he had received two instances of nonjudicial punishment under Article 15.  The immediate commander also remarked that the applicant made it evident that he would make no effort to achieve the minimum standards expected of a Soldier.  He had plainly expressed his intention to do anything necessary to get discharged from the Army.

10.  On 10 August 1973, the applicant’s intermediate commander also recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.

11.  On 15 August 1973, the applicant’s senior commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  

12.  On 21 August 1973, 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 Undesirable Discharge Certificate.  On 24 August 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service under chapter 10 of Army Regulation
635-200 with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed 6 months and 3 days of creditable active military service and he had 92 days of lost time.

13.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s        15-year statute of limitations.

14.  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.

15.  AR 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 from an undesirable discharge to a general discharge.

2.  There is no evidence in the applicant’s records and the applicant did not provide any evidence that shows he was picked on or that racial slurs were used against him.  Furthermore, there is no evidence that the applicant addressed such issues with his chain of command.

3.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and 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 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 repeated record of indiscipline, that includes 2 instances of nonjudicial punishment and multiple instances of AWOL, the applicant's service clearly did 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 a general discharge.
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)                                         AR20080015465



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ABCMR Record of Proceedings (cont)                                         AR20080015465



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