IN THE CASE OF:	

		BOARD DATE:	  01 April 2010

		DOCKET NUMBER:  AR20090015102 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states at the time of his discharge his squad leader was harder on him than the rest of his fellow Soldiers.  The squad leader would call him names, curse him, and make racial slurs against him.  He got into multiple physical fights with his squad leader and the squad leader would give him extra duty and place him on restriction.  He points out he had to do more field exercises than others, he and other black Soldiers were left on Reforger for 
90 days, they caught meningitis and frostbite, and some died due to freezing weather.  Shortly thereafter, he went absent without leave (AWOL) due to the mental stress and anguish.  He indicates he is in desperate need of health care benefits because of kidney and prostate problems.

3.  The applicant provides no 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 enlisted in the Regular Army on 29 August 1978 for a period of 4 years.  He successfully completed one-station unit training in military occupational specialty (MOS) 36C (wire systems installer/operator).

3.  On 14 December 1978, nonjudicial punishment (NJP) was imposed against the applicant for being incapacitated for duty as a result of previous indulgence in intoxicating liquor.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

4.  On 15 January 1980, NJP was imposed against the applicant for disobeying a lawful order and being AWOL from 29 December 1979 to 31 December 1979.  His punishment consisted of a forfeiture of pay (suspended), extra duty, and restriction. 

5.  Records show the applicant went AWOL on 30 July 1980 and he was dropped from the rolls (DFR) of the Army on 29 August 1980.  His date of return to military control is unknown and his charge sheet is not available for review.

6.  On 31 October 1980, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 for the good of the service in lieu of court-martial.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

7.  On 13 November 1980, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.


8.  Accordingly, the applicant was discharged under other than honorable conditions on 5 December 1980 under the provisions of Army Regulation       635-200, chapter 10, in lieu of trial by court-martial.  He had served a total of 2 years, 2 months, and 8 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had lost time from 30 July 1980 to 28 August 1980.

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

10.  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.

11.  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.

12.  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.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

2.  Since the applicant's record of service included two NJP's and at least
31 days of lost time, his record of service was not satisfactory and did not meet 
the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns, but he elected not to do so.

4.  The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  Based on the foregoing, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090015102



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ABCMR Record of Proceedings (cont)                                         AR20090015102



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