IN THE CASE OF:	  

		BOARD DATE:  21 August 2012

		DOCKET NUMBER:  AR20120003585 


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states:

* His record is unjust because the incident that caused him to receive an under other than honorable conditions discharge was due to unfair treatment from his chain of command
* He complained to the chaplain about the unfair treatment but the chaplain stated he needed proof
* From that point forward he became discouraged and his motivation declined
* The time he served on active duty (1 year, 10 months, and 28 days) was honorable
* He was very young
* He witnessed an aggressive act of violence between a sergeant and private during basic training and he was called upon as a witness for the private
* After the incident he was harassed daily (racial slurs and threats of bodily harm)
* He was wrongfully discharged 


3.  The applicant provides:

* Three character reference letters
* Service personnel records
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

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 27 November 1963.  He enlisted in the Regular Army on 21 September 1984 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 12B (combat engineer).

3.  On 13 March 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of failing to go at the time prescribed to his appointed place of duty.

4.  On 6 May 1986, he accepted NJP under Article 15, UCMJ for wrongfully using marijuana from on or about 8 through 18 March 1986.

5.  On 8 July 1986, the applicant departed absent without leave (AWOL) and he returned to military control on 11 September 1986.  On 15 September 1986, charges were preferred against him for the AWOL period.

6.  On 17 September 1986, having consulted with 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.  He acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  


He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

7.  On 26 September 1986, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions.

8.  On 22 October 1986, he was discharged 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 under other than honorable conditions discharge.  He completed 1 year, 10 months, and 28 days of creditable active service with 66 days of time lost.

9.  He provided three character reference letters from his mother and two family members.  They attest the applicant is:

* responsible, trustworthy, and honest
* a good family man
* friendly
* a good person

10.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 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.


	b.  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 he was very young.  However, age is not a sufficiently mitigating factor.  He was almost 21 years old when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  There is no evidence and he provided no evidence which shows he was a victim of harassment.

3.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  He contends he was treated unfairly by his chain of command.  However, there is no evidence of record and he did not provide any evidence to support this contention.

5.  He contends his service on active duty was honorable and he was wrongfully discharged.  However, his record of service included two NJPs and 66 days of time lost.  As a result, his record of service was not satisfactory.

6.  His voluntary 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, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

7.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

8.  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)                                         AR20120003585



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ABCMR Record of Proceedings (cont)                                         AR20120003585



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