IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120008908 


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 discharge under other than honorable conditions.

2.  The applicant states:

	a.  the type of discharge he received was due to racism.  At the time the incidents occurred, Soldiers including himself were harassed by non-minorities. 

	b.  he does understand that there were things that could have been handled better on his part.

	c.  he enjoyed his time in the military and the Soldiers he supervised and friendships that he still maintains.

	d.  he was stationed at Fort Bragg, NC from 1994 to 1996 assigned to Company A, 1st Battalion, 504th Parachute Infantry Regiment.  During this time he and other minority Soldiers were harassed by a sergeant first class.

	e.  prior to his misconduct, he went to the sergeant first class numerous times to tell him about his marital problems but he did not receive any help from the sergeant first class.



	f.  harassment of minority Soldiers was a large issue within the 82nd Airborne Division.  His plans and goals were to retire from the military.  Until the harassment began his career was spotless.  He had received numerous awards and his noncommissioned officer evaluation report prior to the sergeant first class was superb.

3.  The applicant provides:

* 15 attachments outlined in his statement
* Three character reference letters 

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.  Having prior service in the U.S Marine Corps, U.S. Marine Corps Reserve, and Army National Guard, the applicant enlisted in the Regular Army on 
28 January 1988 for a period of 4 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).  On 27 September 1991, he was honorably discharged for immediate reenlistment.  He reenlisted on 28 September 1991 for a period of 6 years.  He attained the rank of sergeant on 1 May 1992.  

3.  He provided a charge sheet, 17 June 1996, for the following offenses:

* Dereliction in the performance of his duties (4 specifications)
* Violation of a lawful general regulation (driving a motor vehicle with his license suspended)
* Sleeping on his post
* Assaulting his wife by grabbing her around the neck with his hands
* Insufficient funds (two specifications)

4.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial on 15 November 1996 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 9 years and 21 days of creditable active service.

5.  He provided:

	a.  a police report showing a negative category entry for his race.

	b.  articles pertaining to racism in the 82nd Airborne Division; Soldiers from Fort Bragg, NC killing an African-American couple; white supremacist groups in the 82nd Airborne Division; and a Soldier in the 82nd Airborne Division who killed other Soldiers due to personal issues.  

6.  He also provided character reference letters from his wife, a friend, and his pastor who attest the applicant is helpful, caring, loyal, positive, and an active member in church.

7.  On 4 March 2009, the Army Discharge Review Board denied his request for a general discharge.  

8.  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.  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.

9.  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.

10.  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 contends the type of discharge he received was due to racism and that harassment of minority Soldiers was a large issue within the 82nd Airborne Division.  However, there is no evidence and he provided no evidence which shows he was a victim of racial discrimination.
  
2.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  It appears he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of 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 the rights of the applicant were fully protected throughout the separation process.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120008908





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ABCMR Record of Proceedings (cont)                                         AR20120008908



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