BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130008487 


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 to honorable.

2.  The applicant states he was a victim of racial discrimination.  This discrimination was the compelling reason for his being absent without leave (AWOL).  His first AWOL was most likely due to alcohol abuse; the second unintentional and due to his being involved in a car accident.  His third AWOL was due to being told he was facing a court-martial and his unit was planning a "blanket party."  His white company commander singled him out and selectively applied rules to him.  The racial harassment interfered with his work performance and he believes it justifies his going AWOL.  He has been incarcerated since 1986 and as a ward of the State had been unable to apply for or use Department of Veterans Affairs (VA) benefits.  He believes his civil rights were violated and as a black African-American male he is in a protected class.  The racial harassment and discrimination he experienced warrants an upgrade of his discharge to honorable.  

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 enlisted in the Regular Army on 18 September 1979.  

3.  He was AWOL from 16 through 20 January 1980 and 8 through 29 February 1980 from his training unit at Aberdeen Proving Ground, MD.  His second AWOL ended with the applicant surrendering to civilian authorities in Ohio.  He was returned to military control at Fort Knox, KY on 1 March 1980.  There is no evidence he was returned to the training command.

4.  Two weeks after returning from his second AWOL, the applicant again went AWOL, for the period 13 March 1980 through 28 March 1983.  This period of AWOL ended as a result of apprehension by civilian authorities and he was again returned to military control at Fort Knox, KY.

5.  Court-martial charges were preferred against him for the three periods of AWOL.  

6.  On 4 April 1983, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for 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).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

7.  He was placed on involuntary excess leave on 4 April 1983.

8.  The discharge authority approved the discharge request and directed the applicant be discharged UOTHC.

9.  The applicant was discharged UOTHC on 13 May 1983.  He had 6 months and 13 days of creditable service with 1,138 days (3 years, 1 month, and 13 days) of lost time due to AWOL and 39 days of excess leave. 

10.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) does not record completion of his training in military occupational specialty 63G (Fuel and Electric Systems Repairman). 

11.  A request for discharge information by the State of Wisconsin Department of Corrections shows the applicant was under investigation for an undisclosed crime with a pending court date of 15 May 1986.

12.  The applicant reports he was incarcerated on 19 November 1986.  At an undocumented point he was released on parole but he violated his parole, and was rejailed.  He was due to be released in November of 2013, after period of over 27 years.  

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	d.  Paragraph 3-7c(7) specifically addresses issuance of a discharge UOTHC issued under the provisions of chapter 10 of this regulation; and

	e.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant had three periods of AWOL and does not appear to have completed training.  

2.  The applicant has not provided and the record does not contain any documentation to support his contentions of racial harassment.  The fact that his periods of AWOL occurred under two significantly different commands belies his contentions of racial harassment by his commanding officer as being the cause of his extensive period of AWOL.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  The applicant's limited creditable service is devoid of any factors that would mitigate the extensive AWOL.  There is insufficient evidence to grant the applicant an upgrade of his UOTHC 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)                                         AR20130008487





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ABCMR Record of Proceedings (cont)                                         AR20130008487



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