IN THE CASE OF:	  

		BOARD DATE:	    14 October 2010

		DOCKET NUMBER:  AR20100011512 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he is an African American man who had a shaving profile for most of his military career.  Due to this profile he was unable to shave, which caused him to have a beard.  He states that even though he maintained his beard in a neat appearance his chain of command still disapproved of the beard and requested that he shave. He also states that since he could not shave he was given this discharge rating.  He states he deserves an honorable discharge and completed his missions and all that was required of his mission in an honorable and professional manner.  

3.  The applicant did not provide any additional documentary 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.  The applicant’s records show he enlisted in the Regular Army on                    3 November 1967 and held military occupational specialty 52B (Power Generator Equipment Repairman).  He also executed a 3 year reenlistment on 11 August 1969.  The highest grade the applicant attained was specialist five/pay grade    E-5.

3.  On 6 May 1969, the applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disorderly conduct.  His punishment consisted of restriction for 14 days and extra duty for 14 days.

4.  On 16 May 1969, the applicant received NJP under Article 15, UCMJ, for violating a lawful general regulation.  His punishment consisted of a forfeiture of $25.00 pay.

5.  On 2 February 1970, the applicant received NJP under Article 15, UCMJ, for failing to go at the prescribed time to his appointed place of duty on 30 July 1970. His punishment consisted of a forfeiture of $25.00 pay, restriction for 7 days, and extra duty for 7 days.  

6.  On 11 July 1970, the applicant received NJP under Article 15, UCMJ, for violating a lawful general regulation on two separate occasions.  His punishment consisted of a forfeiture of $100.00 pay, suspended until 8 September 1970.  

7.  On 26 January 1971, the applicant received NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 15 January 1971 to 21 January 1971.  His punishment consisted of a forfeiture of $85.00 pay, restriction for 14 days, and extra duty for 14 days.

8.  On 22 February 1971, the applicant received NJP under Article 15, UCMJ, for being AWOL from 17 February 1971 to 18 February 1971.  His punishment consisted of reduction to the grade of specialist/E-4, restriction for 30 days, and extra duty for 30 days. 

9.  On 15 March 1972, court-martial charges were preferred against the applicant for two specifications of AWOL from 22 April 1971 to 29 June 1971 and                16 July 1971 to 17 February 1972.  

10.  On 15 March 1972, he consulted with legal counsel and he 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 and of his own free will without being subjected to any coercion whatsoever by any person, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

11.  In his request for discharge the applicant indicated 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 than 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

12.  He submitted a statement on his own behalf wherein he stated he wanted to be discharged from the Army because over the last year he has not been able to accomplish anything, nor does he get along with the noncommissioned officers and officers.  The Army has managed to make him feel like an object rather than a person.  He stated he has been hounded and harassed because of a physical profile that prevented him from shaving and another profile that prevented him from wearing combat boots.  He further stated the Army has been trying to rob him of his pride as a Black man.  He now has to fight for what he has been fighting for all his life, to earn his freedom.  He then stated as long as he remains in the Army he would not have any freedom.  

13.  The applicant’s immediate and intermediate commanders recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge.

14.  On 11 April 1972, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and directed that he be reduced to private (E-1) and issued an under other than honorable conditions discharge.  He was accordingly discharged on 18 April 1972.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with an under other than honorable conditions discharge.  DD Form 214 further confirms he completed a total of 3 years, 7 months, and 28 days of creditable active military service.  DD Form 214 also shows that the applicant had 292 days of lost time from 5 January 1971 to 20 January 1971, 17 February 1971 to        18 February 1971, 22 April 1971 to 28 June 1971, and 16 July 1971 to 16 February 1971.

15.  The applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.  On 4 April 1975, the ADRB denied the applicant’s request for an upgrade of his discharge.

16.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, AWOL over 30 days.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

    a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished an individual who was discharged for the good of the service.

    b.  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.

    c.  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 contends that he deserves an honorable discharge and completed his missions and all that was required of his mission in an honorable and professional manner

2.  The evidence of record shows the applicant was AWOL for a total of 292 days during the period of service under review.  Thus, the evidence of record clearly shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and the applicant is not entitled to an honorable discharge.  Moreover, the applicant’s overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general under honorable conditions or honorable discharge.

3.   The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court martial.  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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service. 

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.  Therefore, in view of all of the above, 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)                                         AR20100011512





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ABCMR Record of Proceedings (cont)                                         AR20100011512



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