IN THE CASE OF:	   

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150000476 


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 the characterization of his discharge under other than honorable conditions to a general, under honorable conditions discharge.

2.  The applicant states that he joined the military because his girlfriend at the time was pregnant.  He wanted to be there for his family, so he decided to marry her and join the Army.  He wanted to be all that he could for his family rather than that guy who would abandon his responsibilities.  

3.  The applicant further states that upon arrival for basic training at Fort Dix, NJ, his drill sergeant appointed him as the guidon bearer.  He tried to be the best Soldier and person that he could be.  He was runner-up for the Soldier of the cycle; sharpshooter and expert with hand grenades; and at six-feet three inches tall he did 82 push-ups, 73 sit-ups, and ran the one-mile run in 12 minutes and 36 seconds.  He was also the only person in his battalion to survive the gas chamber.  After their 15-mile road march, he started having problems with his feet.  He went to the doctor and was informed that his arches had fallen and they could give him a medical discharge.  But he did not want a medical discharge at the time because he did not want to quit.

4.  When he transferred to Fort Riley, KS, he dislocated his knee and the doctor there offered him a medical discharge for that.  But again, the applicant did not want that because the amount of disability compensation at that time was not enough for him to support his family.  While at Fort Riley, he was having problems with his wife messing around with others.  So, she went back to California to live with his best friend and his wife.

5.  The applicant states that he had 27 days of accrued leave at the time that he requested leave through his chain of command.  The chaplain said "yes" on his leave request, but his first sergeant denied the request.  When he asked the first sergeant why he had denied his request, he told the applicant that he had one strike against him because his wife was white.  The applicant's heart was broken, so he went absent without leave (AWOL) for 29 days and then he returned to fight his legal issues.  While going through court-martial procedures, they found that the applicant had done what he was supposed to do and what had been said to him.  They offered him the choice of either transferring to a different unit or getting out of the military; he decided to get out.  As a result, he was discharged under other than honorable conditions.  He desires an upgrade so he can be eligible to receive medical benefits.

6.  The applicant provides an extract from his discharge packet and his DD Form 214 (Certificate of Release or Discharge 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 29 September 1988.  He held military occupational specialty 63W (Wheel Vehicle Repairer).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  The applicant's record contains DA Forms 4187 (Personnel Action) which show his duty status was changed in the following manner on the dates indicated:

* 28 December 1989, from present for duty (PDY) to AWOL
* 2 January 1990, from AWOL to PDY
* 19 April 1990, from PDY to AWOL
* 18 May 1990, from AWOL to PDY

4.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains (and he also provides) United States Army Legal Service Agency, Trial Defense Service, Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, memorandum, dated 14 August 1990, subject:  Request for Discharge for the Good of the Service (applicant's standard name line information), which shows in part:

	a.  The applicant submitted a request for discharge in lieu of trial by court-martial pursuant to chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service.

	b.  He admitted he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge.  

   c.  He waived his rights to submit statements in his own behalf and to have a pre-separation physical examination.

	d.  His chain of command and the Staff Judge Advocate all recommended approval of his request with an other than honorable discharge.

5.  On 23 August 1990, the applicant's request for discharge was approved by the Commanding General, 1st Infantry Division who directed that he be reduced to the lowest enlisted grade and separated with a characterization of service of under other than honorable conditions.

6.  His DD Form 214 shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, on 19 September 1990.  It also shows he completed 1 year, 10 months, and 17 days of creditable active service with lost time during the periods 28 December 1989- 1 January 1990 and 19 April 1990-17 May 1990.

7.  The applicant's record is void of any evidence showing that he requested leave, that he was discriminated against by his first sergeant, or that he sought assistance in coping with his family situation from any of the numerous available resources that are readily available to Soldiers.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 in lieu of trial by court-martial 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, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs' benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally given to an individual who was discharged for the good of the service.  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 contention that his discharge should be upgraded was carefully considered.

2.  Although the applicant contends that he was discriminated against by his first sergeant, there is no evidence in his record and he has not provided sufficient evidence to support this contention.

3.  The evidence of record indicates he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  In view of the foregoing, there appears to be 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)                                         AR20150000476





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ABCMR Record of Proceedings (cont)                                         AR20150000476



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