IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008266 


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.  He states:

	a.  he was 18 years old when he entered basic training at Fort McClellan, AL.  He completed advanced individual training (AIT) and he was transported to Fort Benning, GA.  That was a culture shock for him since he was isolated as a child.

	b.  he internalized a lot of antics and racism bestowed him and around him.  He reported it to his Squad Leader, but he was told to "tough it out."  He states he was labeled as a troublemaker and became an outcast even among other African-American Soldiers in his company.

	c.  he was reclassified and transferred to a field artillery battery as punishment for his complaints.  He states he did not know anything about field artillery and he could not adjust even though he tried.  He also states he was angry; he was trained to use the proper chain of command whenever there was an issue, but when he utilized that chain of command, he was cast out and punished for legitimate complaints.

	d.  he became angry and self-destructive, left Fort Benning, and did not return.  He states he flew home to Long Island, NY, spoke with family members, and eventually turned himself in at Fort Dix, NJ where he was processed for separation with an under other than honorable conditions discharge.

	e.  it was 30 years ago when he experienced these incidents, but they never tarnished his love for the military.  He states he is now 50 years old and counsels at-risk teens in his spare time.

3.  He provides no additional documents.  

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 October 1961 and he enlisted in the Regular Army on 30 October 1979 at the age of 18.  He completed one station unit training at Fort McClellan, AL and he was awarded military occupational specialty (MOS) 95B (Military Policeman).  He was later reclassified to MOS 13B (Cannon Crewman).

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 19 November 1980, for wrongfully appropriating his Military Police badge, of a value of about $2.85, the properly of the U.S. Army, on 2 August 1980
* 19 November 1980, making a false official statement on 23 October 1980
* 23 March 1981, for wrongfully and falsely altering a DD Form 689 (Individual Sick Slip) on 9 March 1981
* 7 May 1981, being absent without leave (AWOL) from 15 April to 6 May 1981
* 17 December 1981, for being derelict in the performance of his duties on   9 December 1981


* 6 January 1982, for being AWOL from 18 December 1981 to 5 January 1982
* (date illegible), for failing to go at the time prescribed to his place of duty on 13 January 1982
* 8 February 1982, for failing to go at the time prescribed to his appointed place of duty on 3 February 1982

4.  On 12 July 1982, charges were preferred against the applicant for being AWOL from 11 April to 1 July 1982.

5.  On 12 July 1982, he consulted with legal counsel and 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.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a an under other than honorable conditions discharge was issued.  He did not submit any statements in his own behalf.

6.  On 20 July 1982, the separation authority, a major general, 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.  He directed the applicant be furnished an Under Other Than Honorable conditions Discharge Certificate and be reduced to the lowest enlisted grade.

7.  He was accordingly discharged on 13 August 1982 with a under other than honorable conditions discharge.  He completed 2 years, 6 months, and 23 days of creditable active service with 82 days of time lost.

8.  There is no evidence the applicant petitioned 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.  

	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 3-7a 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 states he was 18 years old when he entered basic training at Fort McClellan, AL.  Records show the applicant was 19 years of age at the time of his offenses.  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 service record is void of evidence and he has not provided any evidence that demonstrates he was the victim of racial prejudice.  He had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) that ultimately led to his discharge.

3.  His service record shows he received seven Article 15s and he was charged with being AWOL for a period of 82 days.

4.  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.  His service record does not indicate the request was made under coercion or duress.

5.  An under other than honorable conditions discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge.
6.  He further states he is now 50 years old and counsels at-risk teens in his spare time.  However, these factors alone are insufficient as a basis to upgrade his discharge.

7.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120008266



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ABCMR Record of Proceedings (cont)                                         AR20120008266



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