IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120000188 


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 undesirable discharge.

2.  The applicant states he made a mistake in judgment due to his age and lack of life experiences; however, he believes the Army also erred in judgment.  He believes his life will be enhanced if his discharge is upgraded.

3.  He further states he was 17 years old, impressionable, and angry due to the racism he faced in the Army and surrounding community.  The discrimination was overwhelming.  His supervisor denied his emergency leave request when his mother was diagnosed with cancer, and peppered him with racial slurs.  As a result he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for disrespecting a noncommissioned officer (NCO).

4.  Additionally, he received a traffic ticket and a fine for failing to reduce speed which he could not afford to pay; therefore, he had to serve 60 days in jail as part of a work gang.  When he was released to the Army he could not handle the inhumane treatment and harassment on and off post; therefore, he went absent without leave (AWOL).

5.  The applicant 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 was born on 26 May 1949.  On 4 October 1966, at 17 years of age, he enlisted in the Regular Army for a period of 3 years.  He held military occupational specialty 63A (auto maintenance apprentice).  He was assigned to the 503rd Heavy Equipment Maintenance Company, Fort Bragg, NC from
4 January 1967 to 29 May 1969.  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date of Expiration of Term of Service) the following entries:

FROM
TO (inclusive)
DAYS
REASON
4 April 1967
23 April 1967
20
AWOL
1 June 1967
20 June 1967
20
AWOL
7 August 1967
31 October 1967
86
In Hands of Civilian Authorities (IHCA)
5 January 1968
7 January 1968
3
AWOL
22 February 1968
4 March 1968
12
AWOL
13 March 1968
31 March 1968
19
AWOL
15 April 1968
6 May 1968
22
AWOL
8 May 1968
8 August 1968
93
Confined
13 December 1968
17 December 1968
5
AWOL
2 January 1969
15 January 1969
14
AWOL
16 January 1969
22 January 1969
7
IHCA
23 January 1969
23 February 1969
32
Confined
24 February 1969
13 April 1969
49
AWOL & Escape
14 April 1969
18 April 1969
5
IHCA
19 April 1969
28 May 1969
34
Confined

4.  He accepted NJP under Article 15, UCMJ on:

* 25 April 1967, for being AWOL from 4 April 1967 to 24 April 1967
* 3 July 1967, for drinking in his quarters

5.  On 13 March 1967, he was convicted, pursuant to his pleas, by a summary court-martial of one specification of AWOL.  The sentence was adjudged on 
28 July 1967, and approved by the convening authority in accordance with Summary Court-Martial Order Number 30, dated 3 August 1967.

6.  On 13 May 1967, he was convicted, pursuant to his pleas, by a special court-martial of three specifications of AWOL.  The sentence was adjudged on 20 May 1967, and approved by the convening authority in accordance with Special Court-Martial Order Number 144, dated 21 May 1967.

7.  On 19 January 1969, he was convicted, pursuant to his pleas, by a summary court-martial of one specification of AWOL.  The sentence was adjudged and approved by the convening authority in accordance with Summary Court-Martial Order Number 255, dated 5 February 1969.

8.  On 24 April 1969, court-martial charges were preferred against him for one specification of AWOL and one specification of breaking his restriction to the company area.

9.  On 19 May 1969, he underwent a separation physical and he was found to be medically qualified for retention in military service.

10.  On 20 May 1969, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an other than honorable discharge and issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily 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.

11.  In this request for discharge he indicated he understood that by requesting discharge, he 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, 


and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  On 29 May 1969, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 29 May 1969.

13.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time shows he was discharged on 29 May 1969 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, in the rank/grade of private (PV1)/E-1.  He completed 1 year, 5 months, and 24 days of total active service with approximately 427 days of time lost due to AWOL and confinement.

14.  On 8 May 1980, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade of his discharge.

15.  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 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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was young and foolish at the time of his service and that he was subjected to a racist environment he could not handle.  Records show that he was between 17 and 20 years of age at the time of his service.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

2.  His record shows he 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  His record contains a long history of NJP under the provisions of Article 15, court-martials, and extensive AWOL.  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 rendered his service unsatisfactory.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this 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)                                         AR20120000188



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ABCMR Record of Proceedings (cont)                                         AR20120000188



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