IN THE CASE OF:	  

		BOARD DATE:  10 October 2013

		DOCKET NUMBER:  AR20130002553 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  It is his contention that he was discriminated against because of his race.  He was never afforded the opportunity to present his case before a formal military court-martial.  His actions, which led to his other than honorable discharge, were solely to protect his family from harm.  

   b.  After basic training he was elected platoon sergeant for his group of trainees.  Upon arrival at his permanent station he was assigned to the heavy weapons platoon.  He led an exemplary mortar gunner's life.  All of his training was above average and the captain bragged about his performance on several occasions.  
   
   c.  He was unpopular amongst the first lieutenant and other officers in their company because he was married.  Since there was no "on base" housing, he was forced to obtain housing off-post and a car to get to formations on time.  He was never once late.  The fact that his wife was Caucasian got around the company quickly.  Soon phone calls and the harassment started which affected his home life.  His time in the field was met at home with stories of people paying visits to his home while he was away.  So he armed his wife with a shotgun and a dog (a black Labrador).
   
   d.  The harassment turned violent as his wife was accosted for her purse and the thievery of $460.00.  Reporting this to the upper command brought no relief as well as reporting this to the local sheriff.  He was met with "that is a military problem son, nothing we can do for you."  He made the decision to protect his wife and her three sisters, ages 6, 8, and 11.  He confronted the battalion commander, who was white, and was met with no sympathy, help, or answers to the problem.  He made the only decision that was left for him, which was to remove the four women from harassment and imminent danger that confronted them.  They packed their car and decided to leave.  They dropped the sisters back home in Montana and he and his wife headed back to California (CA).
   
   e.  He was shortly interned at the Personnel Control Facility and given an under other than honorable discharge and released with no brig time.  While there he was placed in charge of a platoon and still served his country even though they did not want him.  He kept a military bearing and gave respect when warranted.  He gave his best to the 82nd Airborne Division; however, bias, bigotry, and prejudice seemed to prevail, much to his sorrow.
   
3.  The applicant provides two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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, in pay grade E-1, on 7 April 1981. He completed training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was advanced to pay grade E-2 on 11 October 1981.  

3.  On 20 April 1982, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 9 to 13 January 1982.
4.  On 15 October 1982, a DD Form 458 (Charge Sheet) was prepared by the Commander, Processing Company, U.S. Army Personnel Control Facility, Fort Ord, CA.  The applicant was charged with one specification of being AWOL from 24 April to 18 August 1982.

5.  On 5 November 1982, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.    

6.  In a statement, the applicant stated:

   a.  He joined the Army in April 1981, successfully completed basic combat and advanced individual training and jump school.  He was assigned to the 82nd Airborne Division.  He had a good military background while attending San Raphael Military Academy.  He graduated high school in 1974 and graduated from Scott Community College in 1975.  He was married and his wife was now seven months pregnant.
   
   b.  His parents had been extremely supportive throughout his Army career.  His mother worked for the Army Investigation Service and his father was a retired sergeant first class.  So it was with great regret that he was tendering this request for a discharge under the provisions of chapter 10, Army Regulation.  He felt however it was necessary to request the discharge at that time because of his current feelings toward himself and the Army.  He was originally supposed to be discharged in April 1982 when he was told he would be given a chapter 5 discharge.  Had he received that discharge it would have been either a general or an honorable discharge as warranted by his duty performance at the time.  
   
   c.  Because of the confusion regarding the finality of the chapter 5 discharge, he was considered AWOL for three months.  He was now requesting to receive at least a general discharge because of that duty performance.  He had several job opportunities waiting for him on the outside and still had the support of his wife and parents, but he needed the Army's consideration and support as well.  He had no intention of doing any disservice to the Army or the 82nd Airborne Division during any of that time.

7.  On 9 November 1982, the appropriate separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Discharge Certificate and reduction to pay grade E-1.
8.  On 18 November 1982, he was discharged accordingly.  He completed 1 year, 3 months, and 13 days of net active service with 119 days of time lost.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10, 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 in lieu of trial by court-martial at any time after the charges had been preferred.  An under other than honorable conditions discharge was normally considered appropriate.  The separation authority could direct an honorable or general discharge if such a discharge were merited by the Soldier's overall record.

	b.  Paragraph 3-7a, an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b, a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.  However, the evidence of record shows during his period of service he was punished under Article 15 for being AWOL.  He again went AWOL and upon his return, his command preferred court-martial charges against him.  He was afforded the opportunity to seek legal advice and only after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the service under the provisions of Army Regulation 635-200, chapter 10.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  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.

3.  His contentions and request for an upgrade of his discharge were carefully considered.  However, there is an absence of evidence to support his contentions that prejudice and/or bias based on race relations at the time prevented his satisfactory completion of service.  The evidence shows his misconduct and unsatisfactory performance diminished the quality of his service. 

4.  In his statement for his chapter 10 he stated it was necessary to request the discharge at that time because of his current feelings toward the Army and he had several job opportunities waiting for him on the outside.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence that would entitle him to an upgrade of this discharge.  

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable 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)                                         AR20130002553





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ABCMR Record of Proceedings (cont)                                         AR20130002553



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