IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100028395 


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.

2.  He states, in effect, his discharge was unfair.

3.  He provides a self-authored statement.

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 for a period of 3 years on 11 August 1972.  After completing initial entry training, he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist) and assigned for duty in Korea.

3.  A DD Form 458 (Charge Sheet) shows he was charged with following violations of the Uniform Code of Military Justice (UCMJ):

* failing to go at the time prescribed to his appointed place of duty on 18 August 1973
* willfully disobeying a lawful order issued by the Charge of Quarters on 9 August 1973
* breaking arrest on 12  August 1973
* drinking while on duty as Battalion Guard on 15 August 1973
* unlawfully striking four Soldiers on 12 August 1973
* assaulting a fellow Soldier on 12 August 1973
* assaulting a noncommissioned officer on an unspecified date

4.  The DD Form 458 shows there were 14 witnesses for the prosecution.

5.  On or about 17 August 1973, his brigade commander recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.

6.  On 24 August 1973, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and the rights available to him.  

7.  In his voluntary request for discharge, he indicated he understood that if his request was accepted he could be discharged under other than honorable conditions.  He further acknowledged he understood that as a result of such a discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life.

8.  His records include the following undated statement made by him:

I don't feel the Army gives equal treatment; I know I wasn't treated equal.  I don't feel I deserved pretrial confinement.  I don't know why this uncalled for action was taken against me.  I feel it would be best for me to get out of the Army now.

9.  The record is void of documentation showing the specific circumstances of his pretrial confinement.

10.  On 18 September 1973, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 15 October 1973, he was discharged accordingly.  He completed 1 year, 2 months, and 5 days of total active service. 

11.  On 21 May 1979, The Adjutant General informed him the Army Discharge Review Board had denied his request for a change in the type and nature of his discharge.  

12.  He provides the following statement.

I was falsely accused of starting a fight with another fellow soldier.  Three Caucasian soldiers came into the barracks, [heavily] intoxicated, in which one of them started the fight because he did not like the color of my skin.  The three of them told the company commander that I started the fight, in which they lied.

I was sent to the stockade.  No punishment was imposed against the soldier that started the fight.  After serving three months in the stockade, I was approached by [a lieutenant], in which he threatened me with a Court Martial and to send me straight to Fort Leavenworth, KS.  He did not inquire as to what [happened].  I was not afforded the opportunity to seek legal assistance before going to the stockade or afterwards.  I requested to see [a colonel], in which I was denied.  The Lieutenant wanted me to agree to being discharged out of the military and not being sent back to the unit.  Not fully understanding how the system works, I was never informed that I was going [to receive] an "Other than Honorable" discharge.  I felt that if I had accepted the Court Martial that the three Caucasian soldiers would have stuck together against me.  This fight was the only offense that I was allegedly accused of during my tenure in the military.  The punishment [I received] was too severe for the offense.  During my tenure in the military, I endured a lot of racism and was unfairly treated.  I was denied medical and dental treatment.  I requested to be circumcised in which was denied.  When I arrived in Oakland, CA for final discharge, they discovered that I had Syphilis and gave me a shot.  I do not know how long I was carrying this disease because of denial of medical treatment.  I had bad teeth that needed to be extracted, in which I was denied.  During my tenure in Korea, I was denied leave, with no explanation.  All the other soldiers were afforded the opportunity to go on leave.  Since my discharge from the military, I have never been in trouble with the legal system.  I volunteered and served this country honorably, just like any other veteran that served honorably.  I am not expecting any monetary benefits from the government, I just want justice for what is right.  I want to be recognized as serving HONORABLY in the military, nothing more.
13.  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.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a provides that an honorable discharge (HD) 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.  Paragraph 3-7b provides that a general discharge (GD) 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 HD.  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 evidence of record does not support the applicant's request for upgrade of his discharge.

2.  Although he indicates he was a victim of racism during his military service, there is no evidence in his military records and he has not provided evidence supporting this contention.  Therefore, this argument is insufficient to support his request for an upgrade of his discharge.

3.  The record shows that he was charged with assaulting two Soldiers and unlawfully striking four others.  He was also charged with failing to go to his appointed place of duty, willfully disobeying a lawful order, breaking arrest, and drinking while on duty.  Any one of these offenses was punishable under the UCMJ with a punitive discharge.  

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

5.  The evidence shows he was charged with multiple offenses punishable under the UCMJ with a punitive discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.

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)                                         AR20100028395





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ABCMR Record of Proceedings (cont)                                         AR20100028395



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