IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20140020905 


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 the narrative reason for his separation.

2.  The applicant believes his record is in error or unjust because of "mental anguish, cruel and inhumane punishment, rape, sodomy, terrorism, assault and battery, racism, recurrent fearfulness, and shock mental torture."  He adds that: 

* he was threatened out of the Army under duress
* he lived in constant fear and disgrace 
* he was violated 
* his unit was a very dangerous place for him 
* he was hurt mentally and physically
* he was treated as if he was not human 
* he asks for the correction because of the immoral injustices he suffered
* he is seeking treatment at the Department of Veterans Affairs for the injustices and physical harm he endured 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* notarized statement of support from another individual 
* self-authored statement in support of his VA claim 


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 1 September 1971.  He completed basic combat training at Fort Campbell, KY on or about 1 November 1971. 

3.  He was reassigned to Fort Lee, VA on or about 5 November 1971 for military occupational specialty (MOS) training.  

4.  On 13 December 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice UMJ) for violating a Fort Lee post regulation by littering. 

5.  His service records contain a QMFL Form 442 (Relief/Recycle of Student), dated 7 January 1972, that shows he was relieved from training in MOS 76V (Equipment Storage Specialist) on 4 January 1972 for disciplinary reasons that included a pending special court-martial, one NJP, and pending disciplinary action for sleeping in class.  

6.  The complete facts and circumstances concerning the applicant's discharge are not available for review with this case.  However, his record contains:

	a.  A copy of Special Orders Number 25, issued by Headquarters, U.S. Army Quartermaster Center, Fort Lee, VA, dated 31 January 1972, discharging him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, effective 31 January 1972, with an undesirable discharge (UD). 

	b.  A DD Form 214 that shows he was discharged on 31 January 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions characterization of service and he was issued an Undesirable Discharge Certificate.  This form also shows he completed 5 months and 1 day of creditable active service. 

7.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

8.  He submitted:

	a.  A notarized statement in support of his claim, dated 10 October 2013, from an individual who states he served with the applicant in basic training and he witnessed the applicant being stripped of his clothes and attacked.  He also heard the drill sergeant yelling at others to get wet towels and whip the applicant and saw how they did so.  He also witnessed others calling the applicant all kinds of racial and sexual slurs and saw one person putting the broom handle in the applicant’s rectum while others laughed.  This was done because other Soldiers believed the applicant did not measure up.  The applicant was scared and believed everyone was out to get him, so he ran off base and was accused of being absent without leave. 

	b.  A self-authored statement in support of his claim.  He recalls sitting in the recreation room watching television with other Soldiers.  Three white Soldiers came from behind and attacked him because of his color.  They beat him up and threatened to kill him.  The Military Police came and questioned him and took him to the commander.  His commander was a racist who believed "the only good n----- is a dead n-----."  He was accused of destroying property and the commander threatened him that if he did not accept the discharge, he would send him to 20 years (of imprisonment).  On the way out of the office, the commander threw his paper weight at him and called him racial names.  He still lives with these memories.  He concludes by saying all he wanted was to serve his country because it was at war. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 UD was considered appropriate at the time the applicant was discharged.

	a.  Paragraph 3-7a states 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.

	b.  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.  

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 31 January 1972 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with an under other than honorable conditions discharge. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  The applicant attributes his discharge to "mental anguish, cruel and inhumane punishment, rape, sodomy, terrorism, assault and battery, racism, recurrent fearfulness, and shock mental torture."  However, he does not support that with corroborating evidence such a mental status evaluation, a separation physical, or a medical record documenting the "rape and/or sodomy" and does not explain how "terrorism" led to his discharge.  Likewise, the statement provided by another individual is not supported with any official documentary evidence.  

4.  In the absence of his complete separation packet and based on the available evidence, it appears the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is insufficient evidence to grant him the requested relief. 

5.  The narrative reason for the applicant’s separation was assigned based on the fact that he was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  Based on the available evidence and an assumption of administrative regularity, the only valid narrative reason for separation associated with this type of discharge is "In Lieu of Trial by Court-Martial" as it is currently shown on his DD Form 214.  

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)                                         AR20140020905





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ABCMR Record of Proceedings (cont)                                         AR20140020905



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