IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150005330 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 discharge under other than honorable conditions (UOTHC) to a general discharge under honorable conditions. 2. The applicant states, in effect: * he was offered nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, but he did not accept it because he didn't deserve it * after not accepting the nonjudicial punishment, court-martial charges were preferred against him * he was treated unfairly by the military 3. The applicant provides: * discharge proceedings * DD Form 214 (Report of Separation 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 8 December 1970 for a period of 2 years. He served as a medical specialist and was honorably discharged on 10 February 1972 for immediate reenlistment. He reenlisted on 11 February 1972 for a period of 6 years. He was promoted to specialist five effective 4 March 1975. 3. In November 1975, nonjudicial punishment was imposed against him for failing to repair. 4. He was absent without leave (AWOL) from 23 May 1977 to 1 May 1978. Charges were preferred against him for the AWOL period on 2 May 1978. 5. On 3 May 1978, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected to make a statement in his own behalf. In summary, he stated: * he wanted a chapter 10 discharge because of discrimination problems in Europe * he considered himself to be a good Soldier and very disciplined * after receiving orders to go to Germany, he ran into racial discrimination problems in the unit * he tried to go through his chain of command, but was unsuccessful * he was not informed by his chain of command that he was supposed to go out on an exercise * he had a physical profile that exempted him from going to the field * he proceeded to get his equipment in order to move out, but he never left due to transportation problems * he was offered nonjudicial punishment, but he didn't accept it because he knew he would not be treated fairly * he was offered a summary or special court-martial, but the charges were dismissed because of insufficient evidence * after the court-martial charges were dismissed, his battalion commander told him he felt he was guilty and was a militant racist and should have gone to jail * he was transferred out of the unit without orders or clearing 6. On 19 May 1978, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. 7. On 30 May 1978, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed a total of 6 years, 5 months, and 29 days of creditable active service with 359 days of lost time. His service was characterized as UOTHC. 8. There is no evidence indicating he was a victim of racial discrimination. 9. There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 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 UOTHC is normally considered appropriate. 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. DISCUSSION AND CONCLUSIONS: 1. Although the applicant contends he was a victim of racial discrimination, there is no evidence of record and he provided no evidence to support this contention. 2. His record of service during his last enlistment included one nonjudicial punishment and 359 days of lost time. As a result, his record of service was not satisfactory. 3. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. 4. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 5. There is an insufficient basis for granting the applicant 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 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) AR20150005330 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005330 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1