IN THE CASE OF:	  

		BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090003528 


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 1990 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states his discharge was racially motivated.  In a statement to his congressional representative, the applicant noted that he came from a family of military personnel who had instilled in him that it was every citizen’s duty to serve their country and as such, he enlisted.

3.  The applicant stated that he was stationed at Fort Riley, Kansas, was a PFC (private first class) and worked as a Power Generation Equipment Repairer.  He states that in one weekend all that ended.  He admits that he broke barracks’ policy and had a female stay overnight in the barracks.  He states once the female departed he was told that he was being brought up on charges and that it was his unit first sergeant who was pushing the charges with the company commander.

4.  The applicant states that after 19 years of thinking to himself “why would anyone push so hard to have a PFC court-martialed for only breaking barracks policy” he came to the conclusion that because he was black and the female was caucasian he was given no option.

5.  The applicant notes he is now attempting to return to military service with the Iowa Army National Guard but cannot enlist with this blemish on his military record.  He states he needs to have a general discharge to allow him to reenlist so he can serve his state and his country.
6.  The applicant provides no additional evidence in support of his request. 

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.  Records available to the Board indicate the applicant, an African-American, enlisted and entered active duty as a Regular Army Soldier in pay grade E-3, on 7 March 1989.  He was 19 years old at the time of enlistment.  Following completion of training he was assigned to a maintenance company at Fort Riley, Kansas.

3.  A DD Form 458 (Charge Sheet), dated 23 July 1990, shows the applicant was charged with four counts of carnal knowledge, and three counts of failing to obey a lawful order by having a female visitor stay past visitation hours and possessing and consuming alcohol.  

4.  A United States Army Criminal Investigation Command investigation, contained in the applicant’s record, notes that between 4 May and 13 May 1990 the applicant had sexual intercourse with a civilian female who was 15 years old and that he allowed her to stay in his barracks’ room over a weekend.  That investigation formed the basis of the charges which were preferred against the applicant in July 1990.

5.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He elected not to submit a statement in his own behalf.
6.  The applicant’s request for discharge was supported by all members of his chain of command.

7.  On 29 August 1990, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 

8.  The applicant was discharged, on 7 September 1990, under the provisions of Army Regulation 635-200, chapter 10 with his service characterized as under other than honorable conditions.  He was also credited with completing 1 year, 
6 months, and 1 day of total active service.

9.  In April 1993 the Army Discharge Review Board denied the applicant’s request to upgrade the character of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

11.  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 military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would have jeopardized his rights.  

2.  Charges were not preferred against the applicant for “only breaking barracks policy” as he contends.  Clearly the age of the female involved contributed to the command’s decision to prefer charges.  There is no indication in any available records, or provided by the applicant, that the charges were racially motivated.
3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

4.  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)                                         AR20090003528



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003528



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1