IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20090001706 


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 that his discharge under other than honorable conditions be upgraded to a fully honorable discharge. 

2.  The applicant states that he was administratively discharged from the Army because he was black and the lieutenant was white, which was a common occurrence during the 80's.  He goes on to state that his two other enlistments were honorable and he believes he should receive an honorable discharge for his last enlistment.

3.  The applicant provides copies of his three reports of separation (DD Form 214s), four third party letters of support, and a certificate of appreciation for his volunteer efforts.

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 initially enlisted in the New York Army National Guard (NYARNG) on 23 August 1974 for a period of 6 years.  He was ordered to initial active duty for training (ACDUTRA) on 8 November 1974 and on 21 March 1975, he was honorably released from ACDUTRA at Fort Dix, New Jersey and was returned to his NYARNG unit.

3.  On 15 April 1976, the applicant's unit requested that active duty orders be issued involuntarily ordering the applicant to active duty under the provisions of Army Regulation 135-91, due to the applicant's failure to satisfactorily participate in training.

4.  The applicant was discharged from the NYARNG and was transferred to the United States Army Reserve to complete his statutory service obligation.  On 14 July 1976, the applicant was involuntarily ordered to active duty for a period of 19 months and 2 days.  He was ordered to report to Fort Dix for further transfer to Germany.

5.  He was transferred to Germany on 2 August 1976 and remained there until he was transferred to Fort Dix and was honorably released from active duty (REFRAD) on 13 February 1978 and was transferred to the USAR Control Group (Annual Training).  He had served 1 year and 7 months of active service during his involuntary call to active duty.

6.  On 1 July 1980, he enlisted in the Regular Army for a period of 3 years and training as a graves registration specialist.  He completed his training at Fort Lee, Virginia and was transferred to Fort Ord, California.

7.  On 12 April 1982, charges were preferred against the applicant for being absent without leave (AWOL) from 18 March to 23 March 1982 and from 5 April to 8 April 1982, for behaving with disrespect in language towards a superior commissioned officer, by offering violence towards a superior commissioned officer, and unlawfully striking a superior commissioned officer.

8.  On 23 April 1982, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he understood the charges that had 


been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement in his own behalf.  

9.  The appropriate authority approved his request and directed that he be discharged under other than honorable conditions. 

10.  Accordingly, he was discharged under other than honorable conditions on 14 June 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 11 months, and 6 days of active service during his current enlistment with 8 days of lost time.

11.  On 14 September 1983, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that the charges against him were false.  The applicant was granted a personal appearance before the ADRB travel panel in San Francisco, California on 19 September 1983 and on 5 October 1983, the ADRB found that the applicant's discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted by the Board; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the seriousness of his misconduct.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  The applicant voluntarily submitted his request for discharge in lieu of trial by court-martial and admitted guilt to the charges against him.  While he may now contend that he was not guilty of the charges or that his case was one of racial prejudice, he had the option of going to trial by court-martial, whereas he could have asserted his innocence.  However, the evidence of record clearly shows that he was properly advised by counsel and that he voluntarily admitted guilt to the charges against him.  Accordingly, there is little doubt of his guilt in the matter or that his discharge does not warrant an upgrade.    

5.  In order to justify correction of a military record the applicant must show, 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.
      _______ _ 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)                                         AR20090001706





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ABCMR Record of Proceedings (cont)                                         AR20090001706



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