IN THE CASE OF:  	  

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140018271 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that he was young, full of life, and willing to serve his country when he entered the Army.  During basic combat training (BCT), a military police (MP) sergeant and officer (both wearing side arms) approached him using the "N-word."  He was afraid for his safety and the incident of intimidation and racism shook him to his core.  A few days later he went absent without leave (AWOL) from his unit.  When he returned he was asked if he wanted to stay in the Army or get out.  He elected to get out of the Army because of the incident.  He adds an upgrade of his discharge will make him eligible for veterans' medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 September 1973 for a period of 2 years.  At the time he was 18 years of age.

3.  He was assigned to:

* Company C, 16th Battalion, 4th Brigade, U.S. Army Armor Center, Fort Knox, KY, on 10 October 1973; he completed BCT on 1 December 1973
* Company D, 1st Battalion, 4th Advanced Individual Training Brigade, 
U.S. Army Training Center, Fort Leonard Wood, MO, on 2 December 1973, for training in military occupational specialty 12A (Pioneer)

4.  On 4 April 1974, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 3 December 1973 to 27 March 1974.

5.  The applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  He stated that he did not desire further rehabilitation and he had no desire to perform further military service.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might –

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.
	
   d.  He was also advised that he could submit statements in his own behalf and he elected to submit a statement.

   e.  The applicant and his counsel placed their signatures on the document.
   
   f.  A review of the applicant's statement, dated 5 April 1974, shows that –

* his statement was voluntary with responses to the following:

* State your attitude towards the Army:  "Not to hide anything, I personally dislike to [sic] Army for Sp. Reasons 'and want out'."
* State your personal assessment of your rehabilitation potential:  "Serious no, can't get adapted to the mil. way."
* State your attitude towards the type of discharge you will receive if your application is approved:  "Don't Care!!"
* Remarks:  "My counsel has advised I have 72 hours to consider requesting a 'Ch 10' [Chapter 10], I want to put in my Ch 10 request NOW."

* The applicant signed the statement and his counsel also signed as a witness.

6.  The chain of command recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

7.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that he be furnished an Undesirable Discharge Certificate.

8.  The applicant's DD Form 214 shows he was discharged on 8 May 1974 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, with an under other than honorable conditions characterization of service.  He had completed 3 months and 17 days of net active service during this period and with 114 days of time lost.

9.  A review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, 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.  Chapter 3, 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. 	Chapter 3, 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 his discharge should be upgraded because he was young, he was intimidated and confronted with racism by MPs during BCT that caused him to want to get out of the Army, and he desires to obtain eligibility for veterans' benefits.

2.  The evidence of record shows the applicant successfully completed BCT. Thus, his contention that he was immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, it is concluded the reason for discharge and characterization of service were both proper and equitable.

4.  The applicant's allegations of intimidation and racism that he puts forth in his application to this Board are noted.  It is not clear why he decided (i.e., out of fear) to go AWOL a few days after the alleged incident that occurred during BCT, particularly since he had been reassigned from that installation to another installation.  It is also noted that the applicant failed to make mention of any such allegations in the statement he made to the commanding general when he submitted his request for discharge.  Thus, the rationale he now presents for his actions that led to his discharge is not easily understood.

5.  During the brief period of service under review, the applicant had 114 days of time lost (nearly 4 months).  In addition, he was credited with completing only 
3 months and 17 days of his 2-year enlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  The ABCMR does not grant requests for upgrade of discharges for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

7.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20140018271



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ABCMR Record of Proceedings (cont)                                         AR20140018271



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