IN THE CASE OF:	 

		BOARD DATE:	 23 June 2011

		DOCKET NUMBER:  AR 20110000373 


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 (UOTHC) discharge.

2.  The applicant states, in effect, that he was reassigned to Germany after only 12 months in the Army.  The processing officer in Germany advised him that he should  have received 18 months of training prior to reassignment.  The processing unit in Germany did not have orders to return him to the United States.  He was a raw and inexperienced recruit and he was devastated by the pre-shipping, displacement and maltreatment he received upon arrival in Germany.  He further states there were several confrontations and an altercation within his unit with counterparts believed to be racial.  He was brought up on charges of insubordination before his commanding officer whom he believes to have been partial and biased.     

3.  The applicant provides no documentation to support 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 enlisted in the Regular Army on 6 September 1978.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  The available records show he enlisted for assignment to the Combat Arms Unit - 7th Infantry Division with a cash bonus Enlistment Option in MOS 11B Infantryman.  There is no available record showing he required 18 months of training prior to reassignment. 

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 
35 (Record of Assignments) that effective:

* 14 December 1978, he was assigned to Combat Support Company,
3d Battalion, 32d Infantry, [7th Infantry Division], Fort Ord, CA  
* 6 February 1980, he was assigned to Company C, 1st Battalion, 7th Infantry in Germany

5.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:

     a.  17 April 1979, for behaving with disrespect toward his superior noncommissioned officer.  The punishment consisted of 14 days restriction (suspended for 30 days), reduction to E-1 (suspended for 30 days), 14 days extra duty, and forfeiture of $50.00 for one month. 

     b.  17 April 1980, for being drunk and disorderly in quarters.  The punishment consisted of a reduction to the grade of E-2, forfeiture of $116 per month for        1 month, 14 days extra duty, and 14 days restriction.  

     c.  7 May 1980, for breaking restriction twice, and failing to complete extra duty.  The punishment consisted of a forfeiture of $104.00 per month for one month, 14 days extra duty, 14 days restriction, and reduction to the grade of E-1 (suspended for 30 days).

6.  The applicant's discharge processing documentation is not available.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was administratively discharged on 28 October 1980 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for conduct triable by court-martial with a UOTHC discharge.  He had completed 2 years, 1 month, and 23 days of total active service.

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

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

	a.  Chapter 10 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 such a request. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the 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 UOTHC discharge was normally considered appropriate.

	b.  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.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  His DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial.

2.  There is no available evidence that the applicant was supposed to have completed 18 months of training prior to assignment to his unit of choice.  There is no known program with such a requirement.  Furthermore, the applicant was not a raw recruit.  He had completed basic and advanced individual training and 17 months of active duty; thereby, demonstrating a capacity for honorable service.  In addition, his misconduct started well before he arrived in Germany.

3.  There is no evidence to support the applicant's assertion that his discharge was somehow related to some unknown racial incident.

4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

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 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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20110000373 



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