IN THE CASE OF:	

		BOARD DATE:	    5 November 2013

		DOCKET NUMBER:  AR20130004826 


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 (UOTHC) to a general discharge (GD) or honorable discharge (HD).

2.  The applicant states:

	a.  It was sometimes difficult for colored Soldiers during his military service.

   b.  His record of service will show he received numerous commendations.
   
   c.  He performed well on his military exams and was a good Soldier who was never involved in drugs.
   
   d.  The sergeants looked at him differently after the incident and looked for any reason to write him up in order to kick him out of the service.
   
3.  The applicant provides a copy 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's military records show he enlisted in the Regular Army on 31 August 1977.  He was trained in and served in military occupational specialty 11C (Indirect Fire Infantryman).

3.  His record shows he was administered non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on at least five separate occasions for violating the following Articles:

* 20 April 1978, Article 117 (wrongful use of provoking words) and Article 128 (committing an assault on another Soldier)
* 17 July 1978, Article 86 (failing to go at the time prescribed to his appointed place of duty)
* 9 September 1978, Article 91 (disobeying a lawful order)
* 12 October 1978, Article 86 (failing to go at the time prescribed to his appointed place of duty)
* 29 December 1978, Article 86 (failing to go at the time prescribed to his appointed place of duty)

4.  On 27 June 1989, the applicant acknowledged the charge preferred against him for violating Article 91 of the UCMJ.  Having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

5.  In his request for discharge, he acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.  He further elected not to submit a statement in his own behalf.

6.  On an unknown date, after having considered the applicant's request, the separation authority approved his request and directed he receive a discharge UOTHC under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

7.  On 10 August 1979, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 11 months, and 6 days of total active duty service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 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, in part, 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 UOTHC 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a GD 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 evidence of record reveals an extensive disciplinary history which included his receipt of NJP on five separate occasions.


2.  In addition, the evidence confirms the applicant was charged with the commission of an offense punishable under the UCMJ by a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His request for discharge under the provisions of chapter 10, Army Regulation 635-200, includes his admission of guilt.

3.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. As a result, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20130004826





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ABCMR Record of Proceedings (cont)                                         AR20130004826



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