IN THE CASE OF:	  

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140021268 


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 that his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states his discharge was unjust because it was racially motivated.  At the time of his discharge, he did not realize the negative effects his discharge would have on his life.  He now has a wife and three children with two children currently attending college.  He has no criminal background and he has been working in a good paying job for seven years.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and copies of his commercial driver's license, Chicago Transit Authority employee identification card, and social security card.  

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 24 October 1984.  He reenlisted on 16 October 1987 for a period of 3 years.  

3.  He accepted nonjudicial punishment (NJP) on 3 December 1987 for stealing from another Soldier one field jacket, one battle dress uniform (BDU) pants, and a BDU shirt.

4.  DA Forms 4187 (Personnel Action) show he departed absent without leave (AWOL) on 10 December 1987 and that he remained AWOL until he was apprehended by civilian authorities on 13 February 1988.

5.  On 13 February 1988, court-martial charges were preferred against him for the AWOL offense.  

6.  On 17 February 1988, he consulted with legal counsel and voluntarily requested discharge 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 due to the charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

7.  He acknowledged in his request 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 offenses with which he was charged
* any relevant lesser included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the possible defenses which appear to be available
* the maximum permissible punishment if found guilty

8.  He acknowledged he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he could be deprived of 

many or all Army benefits, and that 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 an under other than honorable conditions discharge.  

9.  On 29 February 1988, the separation authority approved his request for discharge and directed reduction to the lowest enlisted grade and separation with an under other than honorable conditions discharge.  On 4 March 1988, he was discharged accordingly.

10.  There is no evidence in his military records showing he was a victim of racial discrimination or that his discharge was racially motivated.  

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgraded of his discharge.

12.  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 discharge under other than honorable conditions is normally considered appropriate.

	a.  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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense 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 court-martial charges.

3.  His record of indiscipline included court-martial charges for being AWOL and NJP for stealing from another Soldier.  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.

4.  He contends he was a victim of racial discrimination and that his discharge was racially motivated; 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.

5.  The applicant's positive post-service conduct and accomplishments were noted; however, he has failed to show through the documentation presented that his separation processing and/or the character of service he received were in error or unjust.  

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140021268



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ABCMR Record of Proceedings (cont)                                         AR20140021268



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