IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110002472 


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, in effect, an upgrade of his undesirable (UD) discharge to a general discharge.

2.  The applicant states that he was given a UD even though he received no negative counseling and no judicial or nonjudicial punishment (NJP) prior to discharge. 

3.  The applicant provides a copy of:

* a self-authored statement
* a character reference letter
* his DD Form 214 (Report of Separation from Active Duty)
* his DA Form 20 (Enlisted Qualification Record)
* a DD Form 4 (Enlistment Contract – Armed Forces of the United States)

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 26 July 1972 for a period of 2 years.  He completed the required training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest grade he attained was pay grade E-3.

3.  On 11 March 1974, NJP was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language towards a noncommissioned officer and failure to go to his appointed place of duty.

4.  On 25 July 1974, court-martial charges were preferred against the applicant for one specification of raping a female German national on 28 April 1974.

5.  On 16 September 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of the issuance of an Undesirable Discharge Certificate, and of the procedures and rights that were available to him.  

6.  On the same date, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  In his request for discharge the applicant indicated that he had not been coerced into requesting discharge and he had been advised of the implications that were attached to the request.

7.  He further acknowledged he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement on his own behalf.

8.  On 20 September 1974, the separation authority approved the applicant's request for discharge and directed the issuance of a UD.



9.  On 26 September 1974, NJP was imposed against the applicant under Article 15, UCMJ, for being absent from his appointed place of duty.

10.  On 1 October 1974, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 2 years, 2 months, and 26 days of creditable active military service.

11.  The applicant provided a self-authored statement indicating that while he was stationed in Germany was accused of rape.  He states after a police line-up, the military police detachment cleared him of all wrong doing but his battalion commander held the situation against him.  The applicant states that prior to the incident his battalion commander told him on several occasions how he felt about African-Americans in his unit.  He further states that when he began to out process, his battalion commander informed him that he was being demoted and flagged before departing the unit.  He states that he never received any type of negative counseling, judicial punishment, nonjudicial punishment, or any legal counseling. The applicant concluded by stating he was very intimidated by his battalion commander because of the treatment of African-Americans and he did not know his rights. 

12.  The applicant provided a character reference letter written by a former Army recruiter, who described him as being a gentleman with solid moral character and a benefit to anyone who knows him.

13.  On 2 June 1977, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge was normally considered appropriate.  However, at the time the applicant was discharged a UD was considered appropriate. 


15.  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's request that his UD be upgraded was carefully considered.

2.  The evidence of record shows the applicant's request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records reveal a disciplinary history that included being disrespectful in language toward his superior noncommissioned officer and failing to go to his appointed place of duty.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  The applicant was appropriately issued a UD based on the facts of the case.

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)                                         AR20110002472



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ABCMR Record of Proceedings (cont)                                         AR20110002472



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