IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019114 


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 that his discharge be upgraded and that he be allowed to appear before this Board to explain exactly what happened.

2.  The applicant states, in effect, his discharge was inequitable because it was based on disciplinary actions which were racially and personally motivated.  He contends that his troubles began when he reported a warrant officer (WO) to the battalion commander for misuse of equipment.  He was reassigned to Germany and during in-processing he noticed the WO he had reported was in the same unit.  The WO then told everybody that he (the applicant) was working for the Criminal Investigation Command.  He was then tagged by everyone he knew as a traitor.  

3.  The applicant provides no additional 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 15 November 1979 and upon completion of initial entry training he was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  He accepted nonjudicial punishment (NJP) on the following dates:

	a.  on 8 September 1980 for being absent from his unit without authority during the period 22 - 26 August 1980;

	b.  on 18 September 1980 for two specifications of failing to go at the time prescribed to his appointed place of duty;

	c.  on 30 April 1982 for failing to go at the time prescribed to his appointed place of duty;

	d.  on 15 July 1982 for two specifications of failing to go at the time prescribed to his appointed place of duty.

4.  DA Forms 4187 (Personnel Action) show he was absent without leave (AWOL) during the period 14 - 15 July 1982.

5.  Additional DA Forms 4187 show he was in an AWOL status during the periods 16 - 29 July 1982 and 1 - 13 October 1982 and that he was confined by military authorities on 16 October 1982.

6.  His discharge proceedings are not available for review; however, a DA Form 268 (Report for Suspension of Favorable Personnel Actions) contains a statement indicating he had an approved for discharge under "chapter 10."

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 12 November 1982 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial, with service characterized as under conditions other than honorable.  His DD Form 214 also shows he had accrued approximately 
52 days of lost time.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.

10.  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.

11. 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.

12.  Army Regulation 15-185, the regulation under which this Board operates, states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because it was based on disciplinary actions which were racially and personally motivated has been carefully considered.

2.  There is no evidence in the applicant's records, and he provided none, that substantiate his claim he suffered from racism or that his disciplinary problems were as a result of racism.

3.  His discharge packet is not available for review.  However, the record suggests he was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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.  He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army to avoid a trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  His record of indiscipline includes NJP on four occasions, a court-martial charge for being AWOL, and approximately 52 days of lost time.  Based on his record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge at the time and it does not support an upgrade of his discharge now.

5.  The applicant indicated that he would like to personally appear before this Board to explain exactly what happened.  However, there is sufficient evidence available for a fair and impartial consideration of his case.  Therefore, a personal appearance is not required in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20110019114



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ABCMR Record of Proceedings (cont)                                         AR20110019114



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