BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150013799 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150013799 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150013799 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, in effect, upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states he is of Latino ethnicity. Following a series of racial incidents and unfair treatment, he was discharged in lieu of trial by court-martial. He states that other Soldiers were allowed to get away with the same things that he did. It has been more than 35 years since he was discharged and he wants to close that chapter of his life. He adds that he has been diagnosed with terminal cancer. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). He also lists "terminal diagnosis paperwork" as an attachment to his application; however, the documents were not provided. 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 U.S. Army Reserve on 14 December 1977 for a period of 6 years and then further enlisted in the Regular Army on 3 January 1978 for a period of 4 years. a. Upon completion of training he was awarded military occupational specialty 54E (Chemical Operations Specialist). b. He was advanced to private/pay grade E-2 on 3 July 1978. 3. He accepted nonjudicial punishment (NJP), on four separate occasions, for violation of the Uniform Code of Military Justice (UCMJ), as follows: * on 31 July 1978, for being derelict in the performance of his duty * on 18 January 1979, for failing to go to his appointed place of duty (he was reduced to private/pay grade E-1) * on 18 March 1980, for – * wrongful possession of a controlled substance (marijuana) * wrongful appropriation of U.S. Government property * on 15 July 1980, for – * contempt toward a noncommissioned officer (NCO) * failure to follow a lawful order * resisting arrest * damage of U.S. Government property 4. Headquarters, U.S. Army Chemical School, Fort McClellan, AL, Summary Court-Martial Order Number 1, dated 31 March 1981, shows the applicant was found guilty of violation of the UCMJ – * Article 89, for behaving with disrespect in language toward his superior commissioned officer on 14 February 1981 * Article 90, for willfully disobeying a lawful command from his superior commissioned officer on 14 February 1981 a. On 27 March 1981, he was sentenced to forfeiture of $200 pay per month for one month and extra duty for 35 days. b. On 31 March 1981, the sentence was approved by the Summary Court-Martial Convening Authority and ordered executed. 5. On 13 April 1981, court-martial charges were preferred against the applicant for violation of the UCMJ – * Article 134 (two specifications), for – * on 25 February 1981, wrongfully possessing 5.61 grams (more or less) of marijuana * on 25 February 1981, wrongfully selling 5.61 grams (more or less) of marijuana * Article 81, for selling 10 caffeine capsules as amphetamines * Article 121 (two specifications) – * on 25 February 1981, for selling with intent to defraud, by falsely pretending to sell 10 caffeine capsules as amphetamines * on 26 March 1981, for larceny of a watch of a value of about $38 and a high school class ring of a value of about $45, the property of another Soldier 6. On 15 May 1981, the applicant consulted with legal counsel. He was informed of the charges against him for violating the 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 charge(s) 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; however, he elected not to submit any statements in his own behalf. e. The applicant and his counsel placed their signatures on the document. 7. On 29 May 1981, the separation authority approved the applicant's request for discharge and directed that his service be characterized as under other than honorable conditions. 8. The applicant's DD Form 214 shows he entered active duty this period on 3 January 1978 and he was discharged on 3 June 1981 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, with an other than honorable conditions character of service. He had completed 3 years, 5 months, and 1 day of net active service during this period. 9. The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 30 July 1982, the ADRB determined that the reason for his discharge and the characterization of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. REFERENCES: Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 3, 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. c. Chapter 3, 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: 1. The applicant contends that his under other than honorable conditions discharge should be upgraded because he was treated unfairly based on his ethnicity in comparison to other Soldiers who committed the same offenses and he desires to put the type and characterization of his discharge behind him. 2. The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 3. The evidence of record shows the applicant was afforded the opportunity to submit statements in his own behalf when he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. However, he did not submit any statements at that time to support of his contention of unfair treatment based on his ethnicity. In addition, he fails to submit any documentary evidence with his application to support this contention. The evidence of record fails to support his contention of unfair treatment based on ethnicity. 4. The evidence of record shows: a. The applicant received NJP on at four different occasions for offenses that included being derelict in the performance of duty; failing to go to his appointed place of duty; wrongful possession of a controlled substance and wrongful appropriation of U.S. Government property; and contempt toward an NCO, failure to follow a lawful order, resisting arrest, and damaging U.S. Government property. b. He was found guilty at a summary court-martial for behaving with disrespect in language toward his superior commissioned officer and willfully disobeying a lawful command from his superior commissioned officer. c. He was charged with violations of the UCMJ for wrongfully possessing and selling marijuana, attempting to violate a lawful general regulation by selling 10 caffeine capsules as amphetamines, selling with intent to defraud, and larceny of property in the total value of about $83.00. d. The applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an honorable or a general characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013799 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013799 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2