IN THE CASE OF:  	  

		BOARD DATE:  29 September 2015	  

		DOCKET NUMBER:  AR20150002246 


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

2.  The applicant states that after enlisted in the U.S. Army he was awarded military occupational specialty (MOS) 16P (Air Defense Artillery Short Range Missile Crewman).  He was promoted through the ranks very quickly, which caused him stress in trying to maintain his rank.

   a.  He was assigned overseas to Germany.  He was on the U.S. Army Boxing team and a candidate for Drill Sergeant School.  He adds that it was very difficult for him as a young black child from the ghetto trying to make it in the military.
   
   b.  He was mistreated by the officer on duty when he asked for a jeep to pick him up in Frankfurt and bring him to Wiesbaden because he had no funds.  He states, "I did give the officer a few choice words as he was very rude to me."   He adds, "[b]ack then we as blacks had no voice and suffered from both physical and language abuse.  I accepted the discharge as I didn't want any further abuse.  The entire situation was unfair."

   c.  He notes that while a member of the boxing team he took blows to his head and body, and he still suffers from their affects.  He suffers from mental illness (schizophrenia from hearing voices) that he attributes to the hard blows to his head, and believes his condition should be service-connected.  However, he cannot be treated at Department of Veterans Affairs (VA) medical centers due to his discharge.
3.  The applicant provides a self-authored statement (summarized above), a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), three letters of support, and a Presenter Training Application.

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 (RA) on 13 January 1978 for a period of 3 years.  He was awarded MOS 16P and he attained the rank of specialist four (SP4)/pay grade E-4 on 13 May 1979.

3.  A National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) shows the applicant was a member of the RA from 13 January 1978 to 24 October 1979 and that his service was terminated by honorable discharge.

4.  He reenlisted in the RA on 25 October 1979 for a period of 6 years.  He was assigned overseas to Germany on 13 January 1980.

5.  A review of the applicant's military personnel records failed to reveal a copy of a DD Form 458 (Charge Sheet).

6.  On 3 June 1980, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the Uniform Code of Military Justice (UCMJ) and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be –

* deprived of many or all Army benefits
* ineligible for many or all benefits administered by the Veterans Administration
* deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit any statements.

   e.  The applicant and his counsel placed their signatures on the document.

7.  His chain of command recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.  The company commander and battalion commander noted the applicant's repeated outbreaks of violent temper and irrational behavior, and they concluded that he was a threat to the unit's morale and discipline.

8.  On 13 June 1980, the separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

9.  The applicant's DD Form 214 shows he was discharged on 30 June 1980 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, based on conduct triable by court-martial, with an under other than honorable conditions characterization of service.  He had completed 8 months and 6 days of net active service during this period and he was credited with 1 year, 9 months, and 12 days of total prior active service.

10.  A review of his military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.


11.  In support of his application the applicant provides the following documents:

   a.  A letter from his younger sister, dated 15 January 2015, in which she states the applicant started having headaches while in grade school.  His mother passed away on the day of his 8th grade graduation and he started having problems.  He had seizures and he was hospitalized.  After completing high school he decided to join the Army.  She states that he got married, he began to hear voices, "his wife kept him in trouble, and he kept hearing the voices."

   b.  A letter from his eldest sister, dated 15 January 2015, in which she states that the same years the applicant was hearing voices and having seizures, he was seeking help from a State hospital.  She adds that he was treated at several hospitals where he received shock treatments, which did not seem to help him.  He is seeing a psychiatrist, taking medication, and he is now functional.

   c.  A letter from his friend, dated 15 January 2015, in which she states he has been living with her for the last four months.  She states that he received shock treatment during some hospital visits and could not recall what happened.  She adds that he is seeing a psychiatrist, taking medication, and taking better care of himself.

   d.  National Alliance on Mental Illness, Missouri's "In Our Own Voice:  Living With Mental Illness" – Presenter Training Application 2013, that shows the applicant submitted a request to become a presenter because he believes it will help him with his illness.  It shows he has been dealing with his illness since he was 10 years old.

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

   a.  Chapter 1 (General Provisions), section VI (Medical Processing), paragraph 1-33 (Disposition through medical channels), provides that disposition through medical channels takes precedence over administrative separation processing, except in separation actions under Chapter 10 .

	b.  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.

   c.   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.

   d. 	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.

13.  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 applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he suffered physical and verbal abuse from Army officials, he accepted the discharge to avoid further abuse, and he suffers from the effects of blows he sustained to his head and body while a member of the U.S. Army Boxing team.

2.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

   a.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.

   b.  Therefore, in the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate.

3.  The evidence of record shows the applicant was charged with and he acknowledged he was guilty of the charges against him, which authorized the imposition of a bad conduct or dishonorable discharge.

   a.  He was reduced to private (E-1) and he completed less than 9 months of his 6-year RA reenlistment obligation.

   b.  The personal letters submitted in support of the applicant's request were considered.  However, they offer insufficient evidence for upgrading the characterization of his discharge.  

   c.  In view of the foregoing, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is an insufficient basis for granting the 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)                                         AR20150002246



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ABCMR Record of Proceedings (cont)                                         AR20150002246



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