BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024310 


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 a general discharge.

2.  He states his performance prior to the write-ups was good.  He was treated unfairly and in the unfairness he became emotional.  He joined the Army in April 1984.  He trained well and knew the work well.  He was assigned to Company C, 9th Signal Battalion, and he was happy at first.  In time, the hidden unfairness began to manifest.  He was sharing a room with a Private First Class (PFC)
A----- A---, who mistreated him pretty badly.  PFC A--- was advanced to specialist and told him (the applicant) that he had to improve or he was going to receive counseling statements.  He was shocked because he was still in training and yet doing well.  He talked to the sergeant, who didn't care, and he just said they had to improve.  PFC A--- started the write-ups and it was over that quick for him.  He found in time Company C had a lot of wrongdoing in the company.

3.  He also states mostly white people moved up first, then black females or males, and then Hispanics.  PFC A--- was a company favorite and he had an extremely abusive side.  At a charity event, he pushed PFC A--- a little too hard in the face with a cream pie and it knocked him down.  He received an Article 15 for this.  He received another Article 15 for being late for formation.   PFC A--- harassed him all the time.  He was very discouraged because of it.  Later he had a permanent change of station to Germany and while on a 30-day emergency leave to attend a funeral for his oldest brother he went absent without leave 

(AWOL) for 8 days.  He turned himself in and he was processed out.  He was not allowed to return because his post was overseas.

4.  He further states PFC A--- started the bitter harassment that caused the end of a 4-year career.  He was beginning to develop psychological problems of depression and anger.  He graduated from basic combat training (BCT) with no misconduct and an excellent rating.  He attended and graduated from advanced individual training (AIT).

5.  He provides:

* his enlistment contract
* a DA Form 2-1 (Personnel Qualification Record - Part II)
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Community Addiction Treatment Services Certificate of Completion
* his employment and education history
* a character reference letter

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 12 May 1984.  He was discharged from the USAR DEP on
29 May 1984 and he enlisted in the Regular Army (RA) on 30 May 1984 for a period of 4 years in pay grade E-1.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 31K (Combat Signaler).  He was advanced to pay grade E-2 on 30 November 1984, which is the highest grade held during his service.

3.  He received counseling on:

	a.  15 November 1984 for being insubordinate.

   b.  25 February 1985 pertaining to upkeep of his room and tardiness, and for the possibility of Uniform Code of Military Justice (UCMJ) action.

   c.  25 February 1985 for departing from his appointed place of duty without authority and for failing to follow a lawful directive to prepare his vehicle for inspection.

   d.  26 February 1985 for tardiness and immediate initiation of UCMJ actions.

   e.  19 May 1985 for refusing to turn down his stereo and displaying an attitude of prejudice.

   f.  22 July 1985 for failing to show up for formation.

4.  He accepted punishment under Article 15, UCMJ, on:

	a.  21 May 1985 for being disrespectful to a superior noncommissioned officer on 19 May 1985 and for failing to obey an established order on 19 May 1985.

	b.  24 August 1985 for failing to go to formation on 22 July 1985.

5.  On 29 August 1985, the applicant's commander initiated a bar to reenlistment against him.  The commander stated the applicant's record indicated an ongoing inability to adjust to military discipline.  It was apparent the Army had wasted more than enough time on him.

6.  He served in Germany from 6 February 1986 through on or about 26 June 1986.

7.  He was reported AWOL on 26 June 1986.  He returned to military control on 5 August 1986.

8.  On 11 August 1986, a DD Form 458 (Charge Sheet) was prepared by the Commander, Personnel Control Facility, U.S. Army Field Artillery Center, Fort Sill, OK.  The applicant was charged with one specification of being AWOL from 26 June to 5 August 1986.

9.  On 12 August 1986, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he understood he could be discharged under conditions other than honorable and be furnished an Under Other Than Honorable Conditions 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 waived his rights and he elected not to submit a statement in his own behalf.

10.  On 27 August 1986, the Commander, Personnel Control Facility, Fort Sill, recommended approval of the applicant's request with an under other than honorable conditions discharge.  The commander stated the applicant was charged with an AWOL of 40 days, he had become disillusioned with the military, and rehabilitation efforts were considered futile.

11.  On 3 September 1986, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.

12.  On 22 September 1986, he was discharged accordingly 

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  The applicant provided documentation showing he completed the Community Addiction Treatment Services and his employment and education history.  He also provided a character reference letter supporting his request for an upgrade of his discharge based on his sobriety and furthering his education to give him a better chance for greater opportunity in the job market.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the evidence of record shows he enlisted in the RA on 30 May 1984 for 4 years.  He completed training and he was awarded an MOS and advanced to pay grade E-2 on
30 November 1984.  He received several counselings on his performance from November 1984 to July 1985 and he was twice punished under Article 15, UCMJ. In August 1985, his company commander initiated a bar to reenlistment against him.  He departed AWOL on 26 June 1986.  Upon his return to military control on 5 August 1986, he requested a discharge in lieu of facing a court-martial and acknowledged he could be discharged under conditions other than honorable.  

2.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The Personnel Control Facility commander stated the applicant had become disillusioned with the military and rehabilitation efforts were considered futile.

3.  He has submitted neither probative evidence nor a convincing argument to show he is now deserving of an upgrade of his discharge.  He also has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100024310



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ABCMR Record of Proceedings (cont)                                         AR20100024310



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