IN THE CASE OF:	   

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130009780 


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 honorable.

2.  The applicant states:

	a.  He was forced to leave Germany and was discharged under other than honorable conditions because his superiors were going to plant hashish in his wall locker.

	b.  He received the Army Good Conduct Medal and the Pershing Professional Award.  He passed the Rehabilitation Program in Germany even though he was told he did not.

	c.  He will get a lawyer and find the noncommissioned officer (NCO) who told him to be absent without leave (AWOL) and go to Kentucky to get out of the Army before the "Ku Klux Klan" NCO's got him.

3.  The applicant provides the names of three individuals whom he believes would not be hard to find and expose.

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 1981.  He completed training and was awarded military occupational specialty 21G (Pershing Electronics Materiel Specialist).

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 18 July 1984 for failing to obey a lawful order.

4.  On 12 October 1984, court-martial charges were preferred against him for being absent from his organization for the periods 6 through 13 August 1984 and 20 August through 30 September 1984.

5.  On 12 October 1984, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and the procedures and rights available to him.  Following consultation with legal counsel, he 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.

6.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit statements in his own behalf to accompany his request for discharge.

7.  On 19 November 1984, the separation authority approved the applicant's 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, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 27 December 1984, the applicant was discharged accordingly.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial.  This form shows he completed 3 years, 6 months, and 14 days of creditable active service with time lost for the periods 6 through 12 August 1984 and 20 August through 29 September 1984.

9.  There is no evidence in the applicant's records and the applicant provides no evidence to support his claim that his superiors were going to plant hashish in his wall locker, that he was told to be AWOL, or that he was directly subjected to racism which resulted in his undesirable discharge.

10.  On 10 October 1989, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

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

12.  Army Regulation 635-200, 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.

13.  Army Regulation 635-200, 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 records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence in the applicant's records and the applicant provides no evidence to support his claim that his superiors were going to plant hashish in his wall locker, that he was told to be AWOL, or that he was directly subjected to racism which resulted in his undesirable discharge.  The evidence indicates the applicant voluntarily chose to commit the offenses which ultimately led him to face a trial by court-martial which could have resulted in a dishonorable discharge or a bad conduct discharge.  Instead, he chose to request a voluntary discharge.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20130009780



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ABCMR Record of Proceedings (cont)                                         AR20130009780



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