IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150002263 


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 undesirable discharge and he indicates he desires to appear before the Board. 

2.  The applicant states:

   a.  He proudly served in the U.S. Army for 8 years.  During this time he was honorably discharged twice.  He earned an Army Commendation Medal and       two Army Achievement Medals.  He also completed the Basic Noncommissioned Officer (NCO) Course and at no time did he receive any disciplinary action.

   b.  On his last tour in Germany, he was under the command of Sergeant First Class (SFC) E________, who made it clear that he "did not like niggers."        SFC E________ taunted him all day every day.  As a staff sergeant (SSG), the applicant was made squad leader and received orders from SFC E________, who made sure to degrade him in front of the Soldiers and made it difficult for him to complete the tasks that were given to him.

   c.  He spoke to the other NCOs about the issue and was told to "suck it up and get over it."  He was unable to speak to his spouse about it as he felt he was less of a man and unable to defend himself.  He felt trapped, unworthy, and inferior as a result of the abuse and he believed he had no one to turn to.

   d.  He thought about the days when he was 8 or 9 years old and would visit his grandfather in Birmingham, AL.  He saw his grandfather submit to people everyday and opine, "That's just the way it is and if you don't want to get killed you will do the same thing."  The applicant would dread going to work, and on some days, he would get physically ill when he saw SFC E________.  He needed to get away from him.

   e.  His opportunity came when he was sent on temporary duty to Fort Devens, MA.  In the beginning, he felt free and was able to perform his duties like the proud Soldier he was; however, when it came time for his duty to end he began to feel like he did when he was in Germany.  He began drinking in excess and developed a substance abuse problem.

   f.  He didn't understand what was going on with him and he was becoming someone whom he didn't know or like.  He felt like he had no choice, anything was better than retuning to SFC E________.  He went absent without leave (AWOL) and received an under other than honorable conditions discharge.

   g.  This was not his intention when he enlisted in the U.S. Army, he intended to make the Army a career.  His last enlistment was for 6 years and he had his career all planned out.  For his career to end the way it did is a travesty.  He has lived with the undesirable discharge for many years believing it was his fault for going AWOL.  It was not until just recently, with professional help, that he realized that he was traumatized by SFC E________ and he truly believes that he had no choice but to leave.

   h.  He believes his discharge does not take into consideration the entire story and the injustices he suffered as a Soldier.  He hopes the Board will find that it would be in the interest of justice to consider upgrading his discharge.     

3.  The applicant provides no additional evidence.

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 5 March 1980.
3.  After successful assignments that included overseas tours in Germany and Korea, the applicant was assigned to Company A, 1st Military Intelligence Battalion, Federal Republic of Germany, on 15 April 1987, in the rank/grade of SSG/E-6.

4.  His record contains a military police report that states the applicant was administratively released from the motor maintenance course at Fort Devens, MA.  He had been placed on temporary duty as of 23 April 1988 and he failed to be at his appointed place of duty on 14 June 1988.  On 20 July 1988, the applicant was dropped from the rolls as a deserter.

5.  The complete facts and circumstances of the applicant's discharge processing are not available for review with this case.  However, his record contains a 
DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 28 February 1989 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of a court-martial – for the good of the service, with an under other than honorable conditions characterization of service.  This form also shows he completed 8 years, 7 months, and 11 days of creditable active service with time lost for the period 14 June through 24 October 1988.  

6.  There is no evidence in the applicant's personnel service record that shows the applicant sought assistance from his chain of command, chaplain, or mental health professionals for issues involving discrimination or substance abuse.

7.  On 9 November 1989, the applicant requested his undesirable discharge be upgraded.  He stated in his application that the reason he received an under other than honorable conditions discharge was because he went AWOL due to experiencing severe marital problems and tremendous stress at his duty station.

8.  On 23 October 1997, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  On 10 January 2010, the applicant requested the ABCMR upgrade his undesirable discharge.  In his application to the Board he stated he developed a substance abuse problem during the last 8 months of his service.  He was confused and afraid, ashamed, and disappointed with himself.  He ran without asking for help.  He further claimed to be 15 years sober and had obtained credentials as a substance abuse counselor.  He was subsequently informed his application was incomplete and he was instructed of his right to resubmit at a later date.

10.  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 Veterans Administration 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 to an individual who was discharged for the good of the service.

	b.  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.
   
   c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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.  

   a.  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.

   b.  ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice and/or direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to appear before the Board was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though his records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  Although the applicant alleges that he was a victim of discrimination and that he succumbed to substance abuse during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting these contentions.  Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged discrimination or substance abuse.  Therefore, these arguments are not sufficient to support his request for an upgrade of his discharge.

5.  His discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, based on his record of indiscipline, his service would not appear to merit an upgrade to either an honorable or a general discharge.






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)                                         AR20150002263



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ABCMR Record of Proceedings (cont)                                         AR20150002263



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