IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130015491 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he was improperly informed and being administered medication at the time he signed the instrument
* he was being treated for alcohol abuse and given antabuse and he was not aware of what was going on around him
* he was wrongfully accused and not properly treated from his illness
* he was treated with prejudice and neglected
* his family was wrongfully treated due to accusations and his wife was pregnant at the time
* he was kicked to the curb and treated like a convict
* he is black and he was the target of racial bias

3.  The applicant provides:

* notarized statement from his step-daughter
* letter from his clinical social worker
* Criminal Court, County of Bronx, NY, Certificate of Disposition, dated 25 July 2011
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* two certificates
* Department of Veterans Affairs (VA) Administrative Decision
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.  After having a prior period of honorable service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 8 February 1978.

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 26 October 1979, for failing to obey an order, striking a military police officer in the performance of his duties, and being disorderly by throwing rocks at a second floor window of a Government building
* on 2 February 1982, for being absent from his place of duty

4.  On 21 November 1985, the applicant voluntarily requested discharge for the good of the service.  The complete facts and circumstances of the applicant's discharge are not available.  However, his request for discharge shows the following charges were preferred against him:

   a.  Late evening of 16 June 1985:

* one specification of violating Article 92, UCMJ (failure to obey an order or regulation)
* one specification of violating Article 128, UCMJ (assault)
* three specifications of violating Article 134, UCMJ (indecent language and being drunk and disorderly)

   b.  Late evening of 26 October 1985:

*	one specification of violating Article 95, UCMJ (resistance, flight, breach of arrest, and escape)
*	two specifications of violating Article 128, UCMJ (assault)
*	one specification of violating Article 134, UCMJ (general article)

5.  On 21 November 1985, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  He requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged:

* he was guilty of the charges against him or of lesser included offenses
* he had not been subjected to any coercion
* he understood that if hid request was approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life

6.  On 13 December 1985, the separation authority approved his request for discharge and directed that he be reduced to the rank/grade of private/E-1 and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 15 January 1986, the applicant was discharged as directed.

8.  The applicant provides a notarized statement from his step-daughter stating he was wrongly accused and he never assaulted her when she was 16 years old.  He also provides a letter from his social worker attesting to his abstinence and sobriety from drugs and alcohol, a criminal court document showing sentences imposed against him, a Certificate of Achievement for living clean and sober for one year, and a Certificate of Nomination for membership in The American Legion.  He also provides a VA Administrative Decision, dated 6 September 1991, which shows he was determined to be eligible for healthcare for any disabilities determined to be service connected.  

9.  His medical records are not available for review and he does not provide copies of them.  Additionally, there is no evidence he filed an Equal Opportunity (EO) complaint or Inspector General (IG) complaint.

10.  On 6 March 1990, the applicant was notified by the Army Discharge Review Board that his request for an upgrade of his discharge was denied.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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. 

	c.  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, an under other than honorable conditions discharge is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged for offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

3.  Although he contends he was being treated with antabuse, his record is void of and he fails to provide any evidence of an alcohol problem or treatment with antabuse while he was in the Army.  Further, there is no evidence and he fails to provide any showing he filed an EO complaint or an IG complaint.

4.  He voluntarily chose to be discharged instead of facing court-martial when charges were preferred against him.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  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 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)                                         AR20130015491



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ABCMR Record of Proceedings (cont)                                         AR20130015491



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