BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130018287 


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 discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states he got in a boxing match with an "Afro-American" that he won and from that day on he was fair game to all the "Afro-Americans."  He was fighting almost daily.  He did what he had to do.  He was just a kid and didn't want to point fingers.  He wasn't old enough to know how to deal with the conditions he was going through.  He was just 17 years of age when he enlisted. He had two Army Commendation Medals and two Army Achievement Medals but he has no record of them.  They should be in his military records.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-0958 (Notice of Disagreement). 

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.  On 2 May 1984, at the age of 17, he enlisted in the Regular Army for 3 years. On 28 August 1984, he was assigned to the 3rd Battalion, 37th Field Artillery in Germany.

3.  On 5 August 1985, he received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 3 June 1985 to 1 July 1985.

4.  On 3 March 1986, he was assigned to Howitzer Battery, 2nd Squadron, 
3rd Armored Cavalry Regiment at Fort Bliss, TX. 

5.  Headquarters, U.S. Army Air Defense Artillery Center Fort Bliss, TX Permanent Orders 77-22, dated 23 April 1986, awarded the applicant the Army Achievement Medal for meritorious achievement during the period 4 April 1986 to 9 April 1986.

6.  On 17 September 1986, the applicant went AWOL and he was dropped from the rollsof his unit  on 16 October 1986.

7.  On 18 December 1986, he was apprehended by civil authorities in Grand Prairie, TX and returned to military control. 

8.  On 22 December 1986, court-martial charges were preferred against the applicant for being AWOL from on or about 17 September 1986 to on or about 
18 December 1986.

9.  On 22 December 1986, the applicant voluntarily 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.  He acknowledged he understood the offenses he was charged with and he was:

* making the request of his own free will and without coercion
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Other Than Honorable Conditions Discharge Certificate
* not submitting statements in his own behalf with his request

10.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he received a discharge other than honorable conditions and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits

11.  On 13 January 1987, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and  directed the applicant be reduced to the lowest enlisted grade, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 27 January 1987, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 2 years, 5 months, and 24 days of net active service that was characterized as under other than honorable conditions.  He had 
136 days of time lost.

13.  Other than Permanent Orders 77-22, dated 23 April 1986, awarding the applicant the Army Achievement Medal, there are no additional orders in his Military Personnel Records Jacket (MPRJ) awarding him another Army Achievement Medal or any Army Commendation Medals.

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

15.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The Army Achievement Medal is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 
1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.
16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in his MPRJ recommending or awarding him a any Army Commendation Medals.  Therefore, this was not considered in the determination of his case. 

2.  The are no orders recommending or awarding him  a second Army Achievement Medal.  Therefore, an additional award of the Army Achievement Medal was not considered in the determination of his case.

3.  The applicant’s age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

4.  He contends he went AWOL because he had won a boxing match with an "Afro-American" and then he became fair game for all "Afro-Americans" and he was fighting almost daily.  However, he has submitted no substantive evidence to support his contention.

5.  His MPRJ does show he was awarded the Army Achievement Medal for the period of service from 4 - 9 April 1986.  However, this is insufficient to mitigate the fact that he departed AWOL on 17 September 1986 and he was returned to military control only after being apprehended by civil authorities.

6.  The fact that he was apprehended by civilian authorities after 92 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  He had a total of 136 days of time lost.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his under other than honorable conditions discharge to 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)                                         AR20130018287



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ABCMR Record of Proceedings (cont)                                         AR20130018287



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