IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130006011 


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:

	a.  an upgrade of his discharge under other than honorable conditions; and

	b.  items 24 (Character of Service), 25 (Separation Authority), 26 (Separation Code), and 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be amended by deleting all references to discharge in lieu of court-martial. 

2.  The applicant states:

* his discharge was the result of disciplinary actions initiated as part of a racially-motivated vendetta on the part of three noncommissioned officers (NCOs)
* he was forced to request a discharge instead of facing 99 years of confinement at Fort Leavenworth
* he was denied counsel
* his chain of command made misrepresentations of fact and law in order to entice him to sign the request for discharge
* he was told his discharge would automatically be upgraded to honorable or a general discharge in 6 months




3.  He further states:

	a.  He performed his duties well and had no disciplinary problems until Spring 1980.  At that time rumors began circulating that he was having sexual relations with the wife of one of the NCOs in his unit.  The NCO was one of the three above-mentioned individuals.  All three NCOs were white and close friends.  Once the rumors began circulating, it appeared he could do nothing right.  

	b.  He received an Article 15 for being 1 minute late for training (disobeying an order).  After being verbally abused by two sergeants, he received his second Article 15 for being disrespectful toward an NCO and communicating a threat, and he received his third Article 15 for being disrespectful toward an NCO.    

	c.  Since his discharge, he has worked hard, stayed out of trouble, and tried to be a good husband and father.

4.  The applicant provides five character reference letters.

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 27 April 1979 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewman).  

3.  Between May 1980 and November 1980, nonjudicial punishment (NJP) was imposed against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions for:

* disobeying a lawful order
* using disrespectful language toward a sergeant and communicating a threat to injure
* using disrespectful language toward a sergeant    

4.  On 16 December 1980, charges were preferred against him for:

* communicating a threat to a private to do bodily harm
* assault upon a private by striking him with a means likely to produce grievous bodily harm
* communicating a threat to injure a staff sergeant

5.  On 7 January 1981, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and given an under other than honorable discharge, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf. 

6.  On 28 January 1981, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

7.  On 12 February 1981, he was discharged under the provisions of chapter 
10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 1 year, 9 months, and 16 days of creditable active service.  

8.  His DD Form 214 shows the following:

* item 25 – " CHAPTER 10 AR [Army Regulation] 635-200"
* item 26 – "JFS"
* item 28 – "ADMIN (Administrative) DISCHARGE CONDUCT TRIABLE BY COURT MARTIAL"




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

10.  He provides five character reference letters from his wife, friends, a stepchild, and co-worker who attest he:

* is understanding, caring and loving
* has not been in any trouble with the law
* is loyal, considerate, and hard working
* is respectable and trustworthy
* is an excellent cook
* is humorous and kind
* is an upstanding gentleman

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

	a.  Chapter 10 provides 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 under other than honorable conditions 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 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.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes),in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation stated the reason for discharge based on a separation code of JFS is "Administrative discharge conduct triable by court-martial" and the regulatory authority is Army Regulation 635-200, chapter 10.

13.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was the victim of a racially-motivated vendetta.   However, there is no evidence of record and he provides no evidence which shows he was a victim of racial discrimination. 

2.  He contends he was denied counsel.  However, evidence shows he consulted with counsel on 7 January 1981 prior to his voluntary request for discharge.

3.  He contends he was told his discharge would be automatically upgraded to honorable or a general discharge in 6 months.  However, a discharge upgrade is not automatic.

4.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

5.  He contends he has stayed out of trouble since his discharge.  However, good post-service conduct alone is not a basis for upgrading a discharge.

6.  His record of service included three NJPs and serious offenses for which trial by court-martial was recommended.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

8.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

9.  His separation authority, separation code, and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of his separation.  

10.  In view of the foregoing, there is no basis for granting the applicant's requests.

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)                                         AR20130006011



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ABCMR Record of Proceedings (cont)                                         AR20130006011



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