IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140005910 


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, upgrade of his under other than honorable conditions discharge.

2.  The applicant states it seems obvious that fair and rational-thinking individuals understand the unfair way a white person treated a black person when he was fully in charge and had complete control over that individual.  He states this was his case during his military service.  He was a good Soldier un-liked by white Soldiers for no reason. 

3.  The applicant does not provide additional evidence in support of his application.

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's record shows he enlisted in the Regular Army on 12 August 1974.  His record shows he completed basic combat and advanced individual training and was awarded military occupational specialty 05C1O (Radio Teletype Operator).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  On 16 June 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) at Fort Hood, TX, for willfully damaging a bicycle on 27 April 1975.

4.  On 17 August 1976, he received NJP for:

* disobeying a lawful order on 9 August 1976 
* failure to go to his prescribed place of duty on 2, 4, and 9 August 1976 

5.  On 25 August 1976, his immediate commander advised him that he was initiating action to discharge the applicant from the Army under the provisions of Army Regulation 635-200, chapter 5 (Expeditious Discharge Program (EDP)).  The commander also indicated he was recommending the issuance of a general discharge.  His commander stated the reasons for the proposed action were the applicant's poor attitude, lack of motivation, lack of self-discipline, failure to demonstrate promotion potential, inability to accept instruction and directions, clearly substandard performance, and lack of cooperation with peers and superiors.  The commander informed the applicant he could expect to encounter substantial prejudice in civilian life as the result of issuance of a general discharge.  He was also informed of his right to decline the discharge and to submit a statement in his own behalf.

6.  He was advised by counsel of the basis for the contemplated separation with a general discharge and its effect and the rights available to him.  He acknowledged notification of the intent to discharge him, consented to the proposed discharge action, and indicated he did not desire to submit a statement or rebuttal in his behalf.

7.  The separation authority approved his discharge and directed he be given a General Discharge Certificate.

8.  On 21 September 1976, prior to his separation, he was absent without leave (AWOL) and dropped from rolls on 21 October 1976.  The applicant returned from AWOL on 8 December 1976.

9.  Court-martial charges were preferred against him for being AWOL beginning on or about 21 September 1976.
10.  His complete discharge packet is not available for review.  However, his DD Form 214 shows that on 6 January 1977 he was discharged with a character of service of under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.  He had completed 2 years, 2 months, and 8 days of creditable service with 78 days of time lost.  He was given an Undesirable Discharge Certificate.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of the regulation in effect at the time provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

13.  Army Regulation 635-200, chapter 10, states 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.

	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.  

14.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered and found to have an insufficient basis to support his request.

2.  Lacking evidence to the contrary, the applicant's request for separation for the good of the service to avoid trial by court-martial under provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

3.  His records includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions and he was AWOL during the separation process which clearly shows unacceptable behavior.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, he is not entitled to a general discharge or an honorable discharge.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

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)                                         AR20140005910



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ABCMR Record of Proceedings (cont)                                         AR20140005910



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