IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021571 


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 discharge under other than honorable conditions.

2.  The applicant states, in effect, he was a victim of racial injustice and inequality, entrapment, and the recipient of wrongful and willful court-martial charges which could have resulted in a bad conduct discharge.  He attests that he was not a drug dealer or derelict.  He had to fight racial injustice from superiors and was not allowed to transfer to another unit.  He contends he had no disciplinary action against him until he got to Germany where all of his dreams and aspirations were shattered by racial discrimination.  He reported injustice to the Inspector General and faced retaliation which he had to fight every day.  He also states he was targeted and harassed by the U.S. Army Criminal Investigation Command.  He concludes he served with honor and dignity and loved being a Soldier. 

3.  The applicant provides a self-authored statement.

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 7 October 1980 and possessed military occupational specialty 45K (Tank Turret Repairer).  Upon completion of initial entry training he was reassigned to Germany where he served from 19 May 1981 to 17 July 1982.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of his discharge he held the rank/grade of private/E-1.

3.  The applicant's record contains:

	a.  Summary Court-Martial Order Number 12, dated 22 February 1982, which shows the applicant was tried and found guilty of violating the following Articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses shown:

		(1)  Article 92, by having a switchblade knife in his possession on 24 December 1981.

		(2)  Article 108, through negligence, damaging property of the United States in the form of a wall locker of a value over $100.

		(3)  Article 109, by recklessly and wrongfully damaging a pair of headphones of a value of $30.

	b.  a DD Form 458 (Charge Sheet) that shows court-martial charges were preferred against him for six specifications of violating Article 134 of the UCMJ by on or about:

		(1)  22 April 1982, wrongfully possessing, transferring, and selling 0.90 grams of marijuana in the hashish form; and

		(2)  26 April 1982, wrongfully possessing, transferring, and selling 1.03 grams of marijuana in the hashish form.

	c.  a DA Form 268 (Report for Suspension of Favorable Personnel Actions) which shows he was pending Summary Court-Martial for violation of Article 134, UCMJ.

4.  On 16 June 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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 his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

5.  The applicant's chain of command recommended approval of his request with the issuance of an Under Other than Honorable Conditions Discharge Certificate.
On 30 June 1982, the separation authority approved the applicant's discharge request and directed that he be reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 and furnished an Under Other than Honorable Conditions Discharge Certificate. 

6.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 22 July 1982, he was discharged accordingly.  He was issued an Under Other than Honorable Conditions Discharge Certificate.  He completed 1 year, 9 months, and 16 days of creditable active service with no time lost.

7.  The applicant's record is void of any evidence and he has failed to provide any evidence that shows he ever was a victim of or sought assistance in dealing with any form of racial discrimination.

8.  On 27 December 1985, the applicant was informed the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, had determined he was properly and equitably discharged and advised him that his request for a change in the character and/or reason of his discharge had been denied.

9.  The applicant provides a self-authored statement wherein he essentially describes the difficulties of dealing with racial discrimination while growing up in segregated Mississippi during the 1960s and 1970s.  His parents instilled solid values and honesty into his moral fiber.  He excelled in school, the Boy Scouts, the 4H Club, and sports.  He considered his enlistment into the Army as the ultimate achievement and an opportunity to fight for freedom at every level against enemies, both foreign and domestic.  His family was also proud of the fact that he was doing something meaningful.  He was on the way to a successful career and considered becoming an officer so he could continue to excel.  However, this all changed once he was subjected to discrimination in the Army and was forced to fight both peers and superiors of the opposite race.  The stresses of being in such a volatile situation made him become an introvert.  He began to drink in order to cope with stress and eventually became addicted to the lifestyle of drugs and alcohol.  Despite his cries for help with the problems of injustice and inequality, it got worse.  He attests he received a summary court-martial for defending himself in a fight against a group of white Soldiers; none of whom were charged with offenses.  In another incident, while fighting a white noncommissioned officer (NCO), the NCO struck him in the rib cage and he still has the scar.  There were countless other incidents that occurred because he spoke out against racism.  However, he never disobeyed a lawful order, skipped any duty, or failed to pass any military testing.  He states he was offered a hardship discharge, but that was stopped in order to entrap him for selling hashish and heroin.  He contends that the legal office offered no assistance and clearly stated he was going to jail for a long time which caused him to fear for his life.  Being forced to resign was an awful way to leave and all of his dreams and hopes for the future were doomed from that point on.  He has suffered through 32 years of a miscarriage of justice.  He asks that he please be allowed to speak as it is a right in the first amendment of the Constitution.

10.  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, the 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 Under Other than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at the time.

11.  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.

12.  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 record should be corrected by upgrading his under other than honorable conditions discharge was carefully considered and determined to lack merit.

2.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever the victim of racial discrimination.

3.  His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  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)                                         AR20120021571





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ABCMR Record of Proceedings (cont)                                         AR20120021571



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