IN THE CASE OF:	

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120009886 


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 that his undesirable discharge be upgraded to honorable.  

2.  The applicant states he believes his record is unfair due to the fact that on the date of the incident he was wrongly accused.  He contends he and his peers were very hungry and had ordered a pizza and when the pizza arrived, some higher-ranking noncommissioned officers (NCOs) came downstairs and ran off with their food.  They ran after the NCOs to try to get the food back because they had paid for the food, and he felt the NCOs were picking on him because of his color.  He and his peers started to chase the higher-ranking NCOs.  The NCOs ran to their rooms so they knocked on their doors to try to get the food back, but one of the NCOs jumped out of the window and broke his leg.  The military police (MP) were called to the scene and the higher-ranking NCOs lied and stated the Soldier was thrown out of the window.  

3.  The applicant states that while inflicted with fear, he was then sent to the stockade and he explained to the MP and to a representative from the office of the staff judge advocate (JAG) that he did not push the Soldier out of the window. He was advised by the JAG representative that because he was choosing to deny the act, he could go to trial and risk going to jail or be given a dishonorable discharge.  He was very scared and did not know what to do so he chose the "dishonorable" discharge not knowing the implications of such a discharge.  He continues that at the time, blacks had just been desegregated and times were not 

easy for a black person because many times they were picked on and ridiculed.  He did not want to go to trial because he felt that he would not receive a fair hearing and if he was sent to prison, he would have been treated unfairly because he would have been charged with harming a white Soldier.  He further contends that while he was in the military, he followed all orders and was very proud to be serving and protecting his country.  He served one tour in Vietnam and his squad was given the highest honor during a training mission.  He also completed two tours in Germany.  For those reasons and the fact that there was no evidence he pushed someone out of a window, he believes his "dishonorable" discharge should be changed to honorable.  He adds that based on the fact his health has steadily declined and he is not able to provide for himself or his wife, his discharge should be changed.  He states he does not qualify for any assistance from the government.  He says all his medical expenses come out of his pocket and he does not have the money to get the necessary medical care.  

4.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 12 December 1968, four third-party letters of support, and a medical record.

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 inducted into the Army of the United States on 6 February 1967 and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 10 July 1967 through 9 July 1968.  On 13 December 1968, he reenlisted for a period of 4 years.  He also served in Germany from 15 August 1968 through on or around 13 April 1971.

3.  His record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does contain 

a properly-constituted DD Form 214 which identifies the authority and reason for his separation.

4.  His DD Form 214 shows he was discharged on 15 April 1971 in the rank/grade of private/E-1, after completing a total of 4 years, 2 months, and      10 days of creditable active service.  It also shows he was separated 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, with his service characterized as under other than honorable conditions.

5.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge.  

6.  He provided four third-party letters of support that attest to his character and medical conditions and fully support the upgrade of his discharge in order to receive the required medical care.  He also provided a medical record which confirms he is suffering from a number of medical conditions.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, 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 an individual who was discharged for the good of the Service.

8.  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.

9.  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 because he was wrongly accused due to racial discrimination and his need for medical care has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for medical or other benefits.

2.  His record is void of the facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an 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.  It is presumed that after consulting with legal counsel, he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

3.  Additionally, there is no evidence in the available records and he has not provided any to substantiate his claim that he was wrongfully accused or that he was a victim of discrimination. 

4.  In view of the fact that he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120009886



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ABCMR Record of Proceedings (cont)                                         AR20120009886



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