IN THE CASE OF:	  

		BOARD DATE:  4 October 2012

		DOCKET NUMBER:  AR20120007036 


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 an upgrade of his undesirable discharge (UD) to an honorable discharge (HD).

2.  The applicant states his discharge was unjust and due to racial mistreatment. He claims the racial discrimination occurred between a commissioned officer and himself when they both became defensive, resulting in an altercation which he regrets to this day.  He also claims that his commander discharged him without taking the issue of discrimination seriously.  

3.  He states he was reduced in rank from private first class/E-3 to private/E-1 and received a UD.  He states his commander made an appointment for him to consult with counsel which never took place.  He also states that his commander had him sign some documents and informed him they were part of his discharge; however, he later discovered he waived his right to see counsel.  He further states that after signing his discharge he was escorted off military property and returned to the United States. 

4.  The applicant states he would like to have his discharge upgraded to honorable so that he can close this chapter in his life.  He concludes by stating that he served his country with dignity and respect, and always placed the mission first.


5.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Report of Separation from Active Duty)
* Separation Proceedings

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 26 February 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 21 February 1974, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 89 and 90 of the Uniform Code of Military Justice (UCMJ) for being disrespectful towards a commissioned officer and committing an assault on a commissioned officer on 9 February 1974.

4.  On 9 March 1974, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a UD discharge, and of the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.


5.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.  

6.  On 24 April 1974, the applicant's case was reviewed by the Staff Judge Advocate, who recommended that the Commander, 3rd Armored Division, approve the applicant's request for discharge and that a UD Certificate be issued.

7.  On 25 April 1974, the separation authority approved the applicant's request for discharge and directed the issuance of a UD Certificate and his reduction to private/E-1.  On 3 May 1974, the applicant was discharged accordingly.  He completed 1 year, 2 months, and 8 days of creditable active service.

8.  On 1 March 1979, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's record of service and the issues he presented, found the applicant's discharge was proper and equitable and denied his appeal for a change to his discharge status.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) discharge is normally considered appropriate.  At the time of the applicant’s discharge a UD was issued for members separating UOTHC.  

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 (emphasis added), 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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was
carefully considered and it was determined that there is insufficient
evidence to support this request.

2.  Although the applicant alleges that he faced racial discrimination during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence to show that racial discrimination played an integral part in the type of discharge he received.

3.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  
It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  He provides no evidence to show he did not know what he was signing.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  In his request for discharge, the applicant clearly acknowledged the possibility of receiving a UD and that he understood the possible effects of receiving this type of discharge and after electing not to submit statements in his own behalf, he requested administrative discharge to avoid a possible punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance.  

5.  Based on his overall 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.  Therefore, there is no basis for upgrading the applicant's 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)                                         AR20120007036



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ABCMR Record of Proceedings (cont)                                         AR20120007036



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