IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110013518 


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, upgrade of his under other than honorable conditions discharge.

2.  The applicant states his intent or motive at the time of the offense was innocent without malice.  The actions were pursued against him due to racial or biased reasons.   He feels that a review of his case based on what occurred and the events that led to it would give the Board a better assessment of his military service.  The length of his service does not warrant such harsh determination.  The judge wanted to teach him a lesson.  He now needs help. 

3.  The applicant did not provide any evidence.

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 1 November 1974 and he held military occupational specialty 31B (Field Communication Equipment Mechanic).  He served in Germany from 23 May 1975 to 21 October 1977.  

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 28 August 1975, for failing to go at the time prescribed to his appointed place of duty
* 18 November 1975, for failing to go at the time prescribed to his appointed place of duty

4.  On 11 November 1976, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his repeated misconduct and failure to respond to counseling.  The bar was ultimately approved by the appropriate authority.

5.  On 11 January 1977, he was convicted by a special court-martial of orally communicating to a female Soldier certain insulting language.  

6.  On 2 February 1977, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully appropriating a Government truck.

7.  On 13 April 1977, court-martial charges were preferred against him for:

* one specification of disrespecting a commissioned officer
* one specification of disobeying a lawful order
* one specification of wrongfully communicating a threat
* one specification of breaking restriction

8.  On 5 May 1977, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated that he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service.  He further acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He also acknowledged he understood that if the 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He finally elected not to submit a statement in his own behalf.

10.  His intermediate commander interviewed him regarding his request for discharge and its effects on his future.  The applicant expressed understanding of the consequences of his request and the action being taken.  The intermediate commander recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

11.  On 19 May 1977, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 23 may 1977, the applicant was accordingly discharged.

12.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 6 months, and 23 days of active service.

13.  On 22 March 1979, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  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.

15.  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. 

16.  Paragraph 3-7b of Army Regulation 635-200 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence of record and he did not provide any substantiating evidence that shows he discharge was a result of racial or biased reasons.  There would have been many other legitimate channels he could have addressed the alleged racial issues had he chosen to use them. 

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or a general discharge.

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)                                         AR20110013518



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ABCMR Record of Proceedings (cont)                                         AR20110013518



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