BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130005055 


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 to a general discharge.

2.  The applicant states:

* it has been 33 years since his discharge; however, the incident has had a great impact on his life
* in July 1980, a routine of drinking in his office every Friday became the norm and he was a participating minor
* one particular time, his section noncommissioned officer in charge (NCOIC) said to him "You're too smart to be a n----r"
* due to being intoxicated, he struck the NCOIC causing him harm and the next thing he remembers is blacking out and coming to in an off-post jail in Hopkinsville, KY
* while in jail, he was shown pictures of the damage he had done and he was asked if he remembered the incident
* all he remembers was the NCOIC calling him the "N" word
* a week after the incident Uniform Code of Military Justice proceedings were initiated against him for assault and he was told he could go through a general court-martial or accept a chapter 13 and be discharged from the Army
* he was told that he would receive a discharge under other than honorable conditions, which would be upgraded to general after 6 months
* he initially decided on a general court-martial and later decided on a chapter 13 plea bargain

3.  The applicant provides an undated, 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 23 November 1979.  He completed training as an administrative specialist.

3.  On 11 June 1980, the applicant accepted nonjudicial punishment (NJP) for failure to go to his appointed place of duty and for disobeying a lawful order.

4.  On 21 July 1980, the applicant was notified that charges were pending against him for the following:

* eleven specifications of failure to go to his appointed place of duty
* treating his superior noncommissioned officer with contempt
* three specifications of disobeying a lawful order
* being drunk and disorderly
* urinating and spitting on the floor and wall of "D Cell," Provost Marshal's Office

5.  The applicant acknowledged receipt of the notification on 23 July 1980.  After consulting with counsel, he submitted a 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, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

6.  On 31 July 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a discharge under other than honorable conditions.

7.  On 5 August 1980, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 8 months and 5 days of net active service this period.

8.  On 30 June 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

	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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.


	c.  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 contentions have been noted.  His supporting evidence has been considered.

2.  There is no evidence in the available record, nor has the applicant submitted any evidence, showing that he assaulted his section NCOIC as a result of being called the "N" word or that he was discharged under the provision of chapter 13 of Army Regulation 635-200.

3.  The available evidence shows he had NJP imposed against him on one occasion for his act of indiscipline.  He had court-martial charges pending against him for numerous acts of misconduct.  He submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request, he acknowledged he understood the effects of a discharge under other than honorable conditions.

4.  The type of discharge he received appropriately reflects his overall record of service.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130005055



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ABCMR Record of Proceedings (cont)                                         AR20130005055



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