BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140019931 


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 and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was awarded the Army Good Conduct Medal (AGCM) (5th Award).

2.  The applicant states:

	a.  He was on active duty when all the charges were dropped.

	b.  The error and the injustice were caused by poor leadership and a decision that was made as evidence was presented.  

	c.  He served in the Army for 16 years and received the fifth award of the AGCM but the award is not listed on his DD Form 214.

	d.  He received a less than honorable discharge due to racial profiling.

	e.  He is requesting the upgrade in order to obtain benefits.

	f.  During his active duty service, he was severely beaten by the police and he suffered permanent damage.  He was found "not guilty" of all charges.

	g.  The Department of Veterans Affairs (VA) awarded him medical benefits.


3.  The applicant provides:

* DD Form 214
* a letter from a legal firm, dated 20 February 1991
* orders for the AGCM (5th Award)
* Standard Form (SF) 558 (Emergency Care and Treatment (Medical Record)), dated 21 January 1989
* SF 507 (Clinical Record), dated 21 January 1989
* SF 93 (Report of Medical History), dated 17 March 1989
* VA Rating Decision, dated 4 November 2013

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 23 June 1977.  After serving 
9 years, 8 months, and 7 days of active service, he reenlisted in the Regular Army on 5 February 1987, for a period of 6 years.  

3.  Permanent Orders Number 157-2, dated 3 December 1992, awarded him the AGCM (5th Award) for the period 23 June 1989 to 22 June 1992.

4.  A DD Form 458 (Charge Sheet) shows that on 22 February 1993 court-martial charges were preferred against him for:

	a.  stealing $1,016.64 in United States currency, the property of the United States;

	b.  submitting a false and fraudulent lodging expenses claim to the finance officer, Fort Dix, NJ, in the amount of $1,016.64; and

	c.  providing a false and fraudulent statement in order to obtain the approval of a claim against the United States.
5.  On an unspecified date, he consulted with legal 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, due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

6.  In connection with his request, he indicated he was making the request of his own free will and that he had not been subjected to any coercion whatsoever by any person.  He acknowledged he understood the elements of the offenses charged and that he was guilty of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He was advised of:

* the nature of his rights under the UCMJ
* the elements of the offense with which he was charged
* the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the maximum permissible punishment if found guilty

7.  He also acknowledged he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.

8.  On 15 April 1993, the separation authority approved his request for discharge and directed his service be characterized as under other than honorable conditions.  On 14 May 1993, he was discharged accordingly.  His DD Form 214 shows he was awarded the AGCM (4th Award) among other awards.

9.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 13 March 1997.

10.  There is no evidence in the applicant's available military records that show he was a victim of racial discrimination or that his discharge was based on racial profiling.

11.  He provided:

	a.  a letter from a legal firm, dated 20 February 1991, which shows he was charged with assault upon a police officer but later was acquitted of all charges;

	b.  an SF 558 and an SF 507, dated 21 January 1989, which shows he received emergency medical care for head and ear lacerations;

	c.  an SF 93, dated 17 March 1989, in which he indicated that on 21 January 1989 he was beaten by a police officer and he was treated for head injuries;

	d.  a VA Rating Decision, dated 4 November 2013, which shows he was denied service-connected disability compensation.  

12.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge and for correction of his DD Form 214 to show the AGCM (5th Award) was carefully considered.  

2.  Permanent orders show he was awarded the AGCM (5th Award) for the period 23 June 1989 to 22 June 1992; however, his DD Form 214 only shows the AGCM (4th Award).  Therefore, this award should be added to his DD Form 214.

3.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge he admitted he was guilty of the charges.

4.  His voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.  He also indicated that he was cleared of all charges; however, it appears he is referring to charges (assault upon a police officer) that were unrelated to the court-martial charges that prompted his request for discharge in lieu of trial by court-martial.

5.  His record of indiscipline included stealing $1,016.64 in United States currency, the property of the United States, submitting a false and fraudulent lodging expenses claim in the amount of $1,016.64, and providing a false and fraudulent statement in order to obtain the approval of a claim against the United States.  Based on the seriousness of his offenses, and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

6.  He indicated he is requesting the discharge upgraded in order to obtain benefits; however, the ABCMR does not grant a discharge upgraded for the sole purpose of making an individual eligible for veteran's benefits.  

7.  He contends he was a victim of racial discrimination; however, he provided no evidence that substantiates his claim and his military record is void of documentation indicating he suffered from racial discrimination or that racial discrimination and/or harassment were the proximate cause of his acts of misconduct.

8.  The applicant failed to show that the separation process and/or the character of service he received were in error or unjust.  As a result, there is an insufficient basis for granting him an honorable or general characterization of his active duty service.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from his DD Form 214 the Army Good Conduct Medal (4th Award) and adding to his DD Form 214 the Army Good Conduct Medal (5th Award).

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting him an honorable or general characterization of his active duty service.





      ___________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)                                         AR20140019931



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ABCMR Record of Proceedings (cont)                                         AR20140019931



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