BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140020344 


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 (UOTHC) discharge from the Regular Army and a medical discharge from the U.S. Army Reserve (USAR).

2.  The applicant states:

     a.  During his Regular Army service he completed all his duties and he constantly dealt with racism.  He is not a loser or a deserter.  One day as he was saluting a lieutenant he told him to get his hair cut using a racial slur and his hair was already as low as it could get.  He reported the incident and he was sent to see a psychologist.  His mental state was twisted and he was told he would receive a general discharge (GD).  

        b.  He was told that he would receive a medical discharge from the USAR due to a chronic skin disease.  The disease has changed his life mentally and physically.  He has been told he has cancer in two places.  His fingers are frostbitten for life and they stay frozen during the summer and the winter. 

3.  The applicant provides a self-authored statement. 

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 30 October 1972.  He completed training and was awarded military occupational specialty 11B (Light 
Weapons Infantryman).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions:

* 10 April 1973, for failing to go to his appointed place of duty at the prescribed time    
* 26 May 1973, for violating a general regulation by possessing marijuana and for being absent without leave from 17 May 1973 to 19 May 1973 

4.  A DA Form 458 (Charge Sheet), dated 2 June 1973 shows he was charged with disobeying a lawful order and being disrespectful towards an officer.

5.  On 9 August 1973, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an undesirable discharge, and of the rights available to him.  

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged that:

* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veteran Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State law
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

7.  On 4 September 1973, the separation authority approved his request and directed that he receive an undesirable discharge.  

8.  On 27 September 1973, he was discharged in accordance with the separation authority's decision with his service characterized as under conditions other than honorable.  He completed 10 months and 21 days of total active service with 6 days of lost time.

9.  On 20 December 1974, the Army Discharge Review Board denied his request for an upgrade of his UOTHC discharge.

10.  Subsequent to his discharge from active duty he enlisted in the USAR on    10 October 1980.  His enlistment documents show he failed to disclose his prior military service.  

11.  Orders 53-17, issued by Headquarters, USAR, St. Louis, MO, dated             5 May 1982, show he was relieved from his USAR unit for unsatisfactory participation effective 24 April 1982.  His service was characterized as UOTHC.

12. His records contain informal correspondence from a human resources staff member which stated:

     a.  A review of the applicant’s records revealed he consummated a fraudulent enlistment when he denied prior service.  He had previously been discharged and his service was characterized as UOTHC.  

     b.  If he had disclosed his prior service at the time of his enlistment in the USAR he would have been disqualified for enlistment.  He should have been processed for discharged for fraudulent enlistment.  However, since his contract would have expired on 30 September 1986, and processing him for fraudulent enlistment would have required board action there would have not been sufficient time to follow procedures.

     c.  Furthermore, he was transferred to the USAR Control Group by his unit based on unsatisfactory participation.  His service was characterized as UOTHC.

    d.  He should be manually discharged with a UOTHC character of service as was shown on his transfer orders.  If his discharge orders were computer generated he would receive an honorable discharge.  He would be exonerated and eligible to reenlist.
  
13.  The informal correspondence further noted that automated discharge orders had already been generated.
14.  Orders D-10-076282, issued by USAR Personnel Center, St. Louis, MO, dated 8 October 1986, show he was honorably discharged from the Ready Reserve effective 9 October 1986.

15.  His record is void of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service in the USAR.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  Paragraph 3-7a provides that an honorable discharge (HD) 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.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of her or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his UOTHC discharge from the Regular Army was carefully considered. 

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.

3.  He received NJP on two occasions.  Due to this misconduct, his service was unsatisfactory.  There is no basis upon which to grant the requested relief. 

4.  His request for a medical discharge from the USAR was found to be without merit.  

5.  He received an honorable discharge from the USAR; however, records show this was due to computer-generated orders.  He was relieved from his USAR unit due to unsatisfactory participation.  Furthermore, he consummated a fraudulent enlistment when he failed to disclose his prior enlisted service in the Regular Army.  

6.  Additionally, his record is void of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued 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)                                         AR20140020344





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ABCMR Record of Proceedings (cont)                                         AR20140020344



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