BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20130016529 


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 his under other than honorable conditions discharge be upgraded.

2.  He states he joined the Army in hopes of making a better life for himself.  However, he maintains that after being in the military a while, he felt that he was being constantly harassed by anyone senior in rank.  He explains that when he arrived in Germany, their dorms were integrated, but there was so much negative activity and prejudice that the commander segregated their dorms.  He recalls the incident that led to his punishment and discharge.  He states he was visiting a black fellow Soldier in the dorm when two white Soldiers, who had been drinking and/or drunk, called him names and attacked him.  He maintains he was in fear for his life and he defended himself.  He adds that he received medical treatment as well as his attackers and therefore, it is unjust to punish him when he did not start the altercation.  

3.  He provides a self-authored statement, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and his birth certificate.

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 September 1970.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on three different occasions:

* 4 August 1971 for failing to go at the time prescribed to his appointed place of duty on 13, 14, and 15 July 1971; for leaving his appointed place of duty on 27 July 1971; and for failing to obey a lawful order on
7 and 12 July 1971
* 11 August 1971 for failing to go at the time prescribed to his appointed place of duty on 7 and 8 August 1971
* 8 September 1971 unlawfully striking a specialist on the right shoulder with an entrenching tool

4.  On 12 October 1971, charges were preferred against him for committing assault on a private by stabbing him with a knife and striking him in the face with his hand on 18 September 1971.

5.  On 4 November 1971, after consulting with counsel, the applicant requested 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.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all Veterans' Administration benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his behalf.

7.  On 22 November 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

8.  On 7 May 1971, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge.  He completed 1 year, 2 months, and 9 days of active service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 of the version in effect at the time provided 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished 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 contends, in effect, that his discharge should be upgraded because he was defending himself from the attackers and it is unjust to punish him when he did not start the altercation.  There is no evidence and the applicant did not provide any to show he was attacked and he was simply defending himself.
2.  Nevertheless, the record shows he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  

3.  His record of service included three NJPs.  Based on his record of indiscipline, his 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 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)                                         AR20130016529





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ABCMR Record of Proceedings (cont)                                         AR20130016529



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