BOARD DATE:	  30 June 2015

		DOCKET NUMBER:  AR20140017933 


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 an upgrade of his discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states:

	a.  His platoon sergeant typed up his discharge orders for prejudicial reasons, stating, "I hate black people and more so Panamanians.  You will not make it in my Army."  The platoon sergeant promised/threatened that he would make it his business to get him out of the Army.

	b.  He signed his request for discharge under duress as his only other option was trial by court-martial.

	c.  He was denied counsel.

3.  The applicant provides a statement from his wife.

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 was born in Panama.  He enlisted in the Regular Army on 22 April 1986 for 3 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  On 9 February 1987, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty.

4.  On 28 February 1987, NJP was imposed against him for larceny.

5.  On 14 May 1987, a bar to reenlistment was imposed against him.

6.  In July 1987, charges were preferred against him for:

* buying stolen property
* making a false statement

7.  Trial by special court-martial was recommended.

8.  On 18 August 1987, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He elected not to submit a statement in his own behalf.

9.  On 18 August 1987, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a UOTHC Discharge Certificate.

10.  On 3 September 1987, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 4 months, and 12 days of creditable active service.  His service was characterized as UOTHC.

11.  His records contain no evidence indicating he was a victim of discrimination.

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

13.  In a letter from his wife to the Army Review Boards Agency, dated 7 October 2014, she states:

* she witnessed her husband's discharge in 1987
* his platoon sergeant forced him to sign an incomplete document stating he would court-martial him if he didn't comply
* no copy was given to her husband upon his signature/completion
* his sergeant said it would take 6 months to process and he would be notified by mail
* her husband left the Army under the impression that he would honorably discharged
* in 2014, her husband ordered a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* he discovered his discharge UOTHC upon review of his DD Form 214
* he contends this discharge is incorrect and character of service should be honorable

14.  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.  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.

	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.  Although the applicant implies he was a victim of racial and ethnic discrimination, there is no evidence and he provided no evidence to support this contention.

2.  His contentions that he signed his request for discharge under duress and he was denied counsel were carefully considered.  However, the evidence of record shows he consulted with counsel on 18 August 1987 and he acknowledged in writing that he was making his voluntary request of his own free will and he had not been subjected to any coercion whatsoever by any person.

3.  Although his wife contends he left the Army under the impression he was honorably discharged, the evidence of record shows he indicated he understood he might be issued a discharge UOTHC on 18 August 1987.

4.  His record of service included a bar to reenlistment, two NJPs, and serious offenses for which special court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

6.  The type of discharge directed and the reason for his discharge were appropriate considering all the facts of the case.

7.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant an upgrade of his 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 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)                                         AR20140017933



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ABCMR Record of Proceedings (cont)                                         AR20140017933



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