IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100027679 


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.

2.  The applicant states since his discharge from the Army he has been a productive citizen.  He has been following orders to accomplish all tasks assigned to him.  He experienced racism during his period of military service and no one was brave enough to testify on his behalf.  Additionally, he states the entire incident was related to a simple haircut, but he was unable to afford counsel at the time. 

3.  The applicant provides:

* Six statements of support/character reference letters
* Certificate of Appreciation
* College transcripts
* Certificates of recognition and/or completion

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 6 November 1980 and held military occupational specialty 41C (Fire Control Instrument Repairman).  He served in Germany from 20 June 1981 to 23 December 1982.  

3.  He was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, the Army Service Ribbon, and the Overseas Service Ribbon.  The highest rank/grade he attained was private first class/E-3.

4.  On 6 May 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty on 30 April 1981.

5.  On 31 August 1982, he was convicted by a summary court-martial of one specification of willfully disobeying a lawful order.  The court sentenced him to reduction to private (PV2)/E-2 and a forfeiture of $451.00 pay.  The convening authority approved his sentence on 1 September 1982. 

6.  On 7 October 1982, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct/indiscipline. The applicant was furnished a copy of this bar and he failed to submit a statement in his own behalf.  The bar was ultimately approved by the approval authority.

7.  The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case.  However, his record contains the following documents:

	a.  Orders 356-83, issued by Headquarters, 574th Personnel Service Company, Germany, on 22 December 1982, reducing him from PV2/E-2 to private/E-1 with a scheduled discharge date of 11 January 1983; and 

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 29 December 1982 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 2 years, 1 month, and 24 days of creditable active service during this period of service.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

9.  He submitted:

	a.  Letter, dated 10 June 2010, verifying that he served as an Adjunct Instructor for Indian River State College teaching industrial technology courses.

	b.  Letter, dated 13 August 1986, from a manufacturing company vice president who attests to the applicant's outstanding knowledge, dependability, and overall mental ability.

	c.  Certificate of Appreciation, dated 21 February 1992 for successfully completing a project.

	d.  Undated letter from an individual who describes the applicant as knowledgeable in certain skills.

	e.  Letter, dated 29 September 1986, verifying his employment as a quality control inspector.

	f.  College transcripts from Indian River State College showing completion of college courses.

	g.  Letter of support, dated 15 May 2010, from a technician who describes the applicant as a tremendous asset.

	h.  Letter, dated 17 July 2003, from a senior project engineer who describes the applicant as a reliable and dedicated individual.

	i.  Certificates of appreciation and/or completion.

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.  The applicant contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 29 December 1982 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during this period of service.   

4.  While it is acknowledged there may have been racial tensions at the time of his service, there is no evidence in his records and he did not provide any evidence that shows he addressed this issue with his chain of command or other support channels. 

5.  His post-service achievements are noted.  However, they are not sufficiently mitigating in granting him the requested relief.  The available evidence shows a military career marred with misconduct that included one instance of NJP, one instance of a court-martial, and a bar to reenlistment.  As a result, his overall record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general or an honorable discharge.  Therefore, he is not entitled to 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)                                         AR20100027679



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ABCMR Record of Proceedings (cont)                                         AR20100027679



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