IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007621 


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

2.  The applicant states that his current discharge was given after he had received an honorable discharge and was a reflection of the times and was racially motivated.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 28 March 1977 for a period of 4 years and training as a power generator and wheel vehicle mechanic.  He completed his training at Fort Jackson, South Carolina and he was transferred to Germany on 4 August 1977.  He served in Germany until 25 July 1979 and he was transferred to Fort Ord, California.  He was promoted to the rank of sergeant on 12 August 1980.

3.  On 28 September 1980, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 29 September 1980 for a period of
3 years, assignment to Europe, and a selective reenlistment bonus.

4.  He was transferred to Germany on 5 January 1981 for assignment to an engineer company.

5.  During the period 19 October 1981 to 26 October 1982, nonjudicial punishment was imposed against him on three occasions for striking another Soldier in the face with his fist, disobeying a lawful order from a superior noncommissioned officer, and multiple specifications of failing to go at the time prescribed to his appointed place of duty.

6.  On 22 November 1982, charges were preferred against the applicant for disobeying a lawful order from a superior noncommissioned officer and five specifications of failing to go at the time prescribed to his appointed place of duty.

7.  On 12 January 1983, after consulting with defense counsel, the applicant submitted a request for 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

8.  On 25 January 1983, the appropriate authority (a major general) approved his request for discharge and directed the applicant be given an under other than honorable conditions discharge.

9.  On 8 February 1983, 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 5 years, 10 months, and 11 days of active service.
10.  On 19 January 1990, he applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his undesirable discharge to a general discharge.  On 16 September 1992, after careful consideration of the applicant's military records and all other available evidence, the ADRB determined he was properly discharged.  Accordingly, the ADRB denied his request.

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

	a.    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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  An under other than honorable conditions discharge is normally considered appropriate.

	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’s voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the serious nature of his offenses and his otherwise undistinguished record of service.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140007621





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ABCMR Record of Proceedings (cont)                                         AR20140007621



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