IN THE CASE OF:
BOARD DATE: 26 August 2010
DOCKET NUMBER: AR20100008890
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 discharge to honorable.
2. The applicant states he was discriminated against and degraded because he was a Cuban. He had two commendations from Aberdeen Proving Grounds, but they were removed and replaced by two punishments under Article 15, Uniform Code of Military Justice (UCMJ). Despite all his training, all he ever got to do was work in a 45 foot trailer full of asbestos brake shoes. But first, he had to stand at attention every morning from 0530 to 0745 hours. He only got paid once and that was due to an application for advanced pay. He ran off and was caught 8 months later in a traffic stop. By then, he was stronger and was ready to serve, but he was asked if he wanted out and he said yes. He was told he would be separated as unable to adapt to the military; however, that was not what he received. If he had been treated decently he would still be in the military. Because of the discharge he cannot become a citizen, get help from the Department of Veterans Affairs (VA), or even qualify for food stamps; but he loves this country and would fight for the United States even today.
3. The applicant provides, in support of his request, copies of his commercial driver's license, Social Security card, Permanent Resident card, a Professional Certification card, his Internal Revenue Service Form E-2 (Wage and Tax Statement 2009), and a photograph of himself as a young Soldier in uniform.
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 applicants 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 applicants 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 30 July 1980. At Fort Leonard Wood, Missouri, he completed basic training without incident. He was transferred to Fort Sam Houston, Texas where he was twice recycled during advanced individual training (AIT) in the medical field.
3. He completed AIT in military occupational specialty (MOS) 63G as a Fuel and Electrical Systems Repairer.
4. On 17 April 1981, he was transferred from Aberdeen Proving Ground, Maryland to Fort Bragg, North Carolina for duty with the 503rd Maintenance Company.
5. On 21 June 1981, he received nonjudicial punishment (NJP) under Article 15, UCMJ for a 3-day absence without leave (AWOL). The punishment consisted of restriction and extra duty for 15 days. He received a second NJP for a 2-day AWOL, on 24 July 1981. The punishment included forfeiture of $100 pay per month for 1 month and 15 days correctional custody. The applicant did not appeal either punishment.
6. Notwithstanding the two NJPs, the applicant was advanced to pay grade E-3 on 30 July 1981.
7. The applicant was then AWOL from 12 August 1981 to 14 September 1982.
On 16 September 1982, the applicant signed a statement that said, "I went AWOL from Ft. Bragg because mentally, emotionally, physically I can not deal with it. Especially physically and emotionally. All I want is to go home to my wife & kids."
8. When charges were preferred for that AWOL, the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial. He indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he understood that if his 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and state laws.
9. The chain of command recommended approval of the applicant's request. The separation authority approved the request and directed that an under other than honorable conditions discharge be issued. On 15 October 1982, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10. He had 406 days of lost time.
10. On 23 April 1991, the Army Discharge Review Board (ADRB) considered the applicant's overall record and declined to upgrade his discharge.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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.
12. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses under the UCMJ. A punitive discharge is authorized for any AWOL in excess of 30 days.
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 members 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. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he was discriminated against and degraded because he was a Cuban. He ran off and was caught 8 months later in a traffic stop. By then he was stronger and was ready to serve, but he was asked if he wanted out and he said yes. He was told he would be separated as unable to adapt to the military, but that was not what he received. If he had been treated decently he would still be in the military. Because of the discharge, he cannot become a citizen, get help from the VA, or even qualify for food stamps but he loves this country and would fight for the United States even today.
2. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. The character of the discharge is commensurate with his overall record.
3. There is no documentation to support the applicant's contentions and no rationale to support the conclusion that those alleged circumstances would warrant the requested relief.
4. In view of the foregoing there is no basis for granting the applicant's requested relief.
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) AR20100008890
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ABCMR Record of Proceedings (cont) AR20100008890
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