BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150015160 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: 2 February 2017 DOCKET NUMBER: AR20150015160 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: 2 February 2017 DOCKET NUMBER: AR20150015160 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, an upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states, in effect: * he joined the Army in 1971 during the draft, and at that time, especially in Oklahoma, black Soldiers were treated horribly by white officers and Soldiers * he was constantly being physically and emotionally reprimanded for no reason other than the color of his skin * he felt like he was a slave within his own company; officers would beat black Soldiers to degrade them * his foster mother fell ill and he was allowed to go home on leave just in time to see her before she passed away * he returned and a white officer wouldn't allow him to check in; he was reprimanded but did nothing wrong * he served his country honorably and wants his children to know that and he wants to be recognized for that service 3. The applicant provides a photocopy, front and back, of his DD Form 2A (Armed Forces of the United States – Identification 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 4 December 1970 for a period of 3 years for Army Career Group 63 (Automotive Maintenance). He was assigned to Company B, 4th Battalion, 3rd Basic Combat Training Brigade, Fort Leonard Wood, Missouri for basic training. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions: a. on 26 February 1971, for being absent without leave (AWOL) from his unit on or about 18 February 1971 through on or about 25 February 1971; and b. on 8 April 1971, for being AWOL from his unit from on or about 1 April 1971 through on or about 6 April 1971. 4. A DA Form 188 (Extract Copy of Morning Report) shows the applicant, who was dropped from the rolls (DFR) of the Army, was apprehended by civil authorities on 28 July 1971 and returned to military control at Fort Sill, OK, on 3 August 1971. 5. A DD Form 458 (Charge Sheet), dated 3 August 1971, shows court-martial charges were preferred against the applicant for being AWOL from his unit on or about 4 May 1971 to on about 28 July 1971 by the Commander, Headquarters Command, Personal Control Facility (PCF), U.S. Army Field Artillery Center, Fort Sill, OK. 6. He consulted with legal counsel on 13 August 1971, and subsequent to his consultation with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial for the good of the service. In doing so, he acknowledged the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 7. He elected to submit a statement in his own behalf. He submitted a self-authored three-page statement, wherein he stated he had personal issues and financial concerns at home with his wife and family and requested to be discharged from the Army. 8. The separation authority approved his request for discharge on 30 August 1971 and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. 9. The applicant was discharged on 2 September 1971. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial for the good of the service. He served 4 months and 23 days of total active service, accrued 128 days of lost time, and his service was characterized as under conditions other than honorable. 10. There is no evidence in his record nor does he provide evidence that establishes a hostile work environment in which he was physically and emotionally reprimanded based on his race or ethnicity. 11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. He provides a photocopy, front and back, of his DD Form 2A (Armed Forces of the United States - Identification Card). REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred. Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service. Consulting counsel will advise the member concerning the elements of the offense or offenses for which he or she is charged, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 issued to an individual who is discharged for the good of the service. DISCUSSION: 1. The available evidence shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 4. His record of indiscipline during his brief period of service included two instances of NJP for AWOL offenses and court-martial charges for a lengthy AWOL period. Based on the seriousness of his misconduct, and in view of the fact that he voluntarily requested discharge 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015160 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015160 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2