IN THE CASE OF:	  

		BOARD DATE:	  	   21 April 2009

		DOCKET NUMBER:  AR20080017638 


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 undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, he was barely 18 years of age when a senior noncommissioned officer led him to believe that he was signing an agreement to retire for the good of the service because of the U.S. Army's inability to place him in the duty position for which he was trained.  He adds that he was under no disciplinary actions at the time.

   a.  The applicant states he was held more than 60 days in the Mannheim Stockade in Germany during October and November of 1972 without formal charges or a trial.  As a result, it was easy for his First Sergeant to convince him to sign the agreement to "retire" for the good of the service.

   b.  The applicant concludes by stating, in effect, he is currently incarcerated, he will be home in June 2009, and would like to personally appear before the board in the southern California area sometime thereafter.  The applicant adds he legally changed his name in 1978, his birth certificate and social security card are on file in Talladega County, Alabama reflect this change, and he attests to being the former service member with legal standing regarding his military records.

3.  The applicant provides two self-authored letters, dated 3 November 2008 and 19 February 2009; and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 29 October 2008, in support of his 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's military service records contain a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 24 September 1971.  This document shows, in pertinent part, the applicant’s date of birth is __ September 1954 and that his mother (M_____ W____) consented to the applicant’s enlistment in the Regular Army (RA) for a period of 3 years.

3.  The applicant's military personnel records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows the applicant enlisted in the RA for a period of 3 years on 8 October 1971 for Army Career Group (ACG) 71 (Administration Enlistment Option).  The DD Form 4 also shows his date of birth is __ September 1954.

4.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).

   a.  Item 27 (Military Education) shows the applicant completed the 8-week Clerk Typist (71B1O) course.

   b.  Item 22 (Military Occupational Specialties) shows he was awarded military occupational specialty (MOS) 71B1O (Clerk Typist), effective 21 April 1972.

   c.  Item 31 (Foreign Service) shows he was assigned overseas to U.S. Army, Europe (USAREUR) in Germany on 17 May 1972.

   d.  Item 38 (Record of Assignments), in pertinent part, shows that the applicant attended combat support training in MOS 71B1O while assigned to Company E, 1st Battalion, 4th Training Brigade, Fort Polk, Louisiana, from
10 December 1971 to 20 April 1972.  This item also shows he departed Fort 
Polk, Louisiana on 21 April 1972 en route to USAREUR and was assigned to the 61st Military Police Detachment (USAREUR) on 2 June 1972 in duty MOS 71B1O.

   e.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was confined at hard labor from 25 February to 21 March 1972.

5.  The applicant’s military personnel records contain a copy of Headquarters,
Fourth Combat Support Training Brigade, U.S. Army Training Center, Infantry, Fort Polk, Summary Court-Martial Order Number 14, dated 25 February 1972, which documents the following charges, specifications, pleas, findings, sentence, and action.

   a.  Charge I, Article 116, Uniform Code of Military Justice (UCMJ), with the Specification that, on or about 0125 hours, 6 February 1972, the applicant did participate in a breach of the peace by yelling in the barracks after lights out and upsetting bunks and throwing individuals from the bunks on the floor, or actions to that effect.  The applicant entered a plea of not guilty and was found guilty.

   b.  Charge II, Article 128, UCMJ, Specification 1, that, on or about 0125 hours, 6 February 1972, the applicant unlawfully struck a U.S. Army Soldier, Private C_______ W. R______, on the face either with his fist or with an open palm.  The applicant entered a plea of not guilty and was found guilty.

   c.  Charge II, Article 128, UCMJ, Specification 2, that, on or about 0125 hours, 6 February 1972, the applicant unlawfully struck a U.S. Army Soldier, Private L____ B_______, on the head either with his fist or with an open palm.  The applicant entered a plea of not guilty and was found guilty.

   d.  Charge II, Article 128, UCMJ, Specification 3, that, on or about 0125 hours, 6 February 1972, the applicant unlawfully struck a U.S. Army Soldier, Private J_____ R______, on the head either with his fist or with an open palm.  The applicant entered a plea of not guilty and was found guilty.

   e.  On 25 February 1972, the sentence was adjudged.  The applicant’s sentence was to be confined at hard labor for 30 days and to forfeit $192.00 pay for one month.  (No previous convictions considered.)

   f.  On 25 February 1972, the convening authority approved the sentence and ordered the sentence duly executed.  (The convening authority ordered the applicant to be confined in the Post Stockade, Fort Polk and the confinement served therein or elsewhere as competent authority may direct.)

6.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 4 October 1972, that shows the Commander, Company A,
709th Military Police Battalion (Germany), preferred charges against the applicant, in that he did:

   a.  at Butzbach, Germany, on or about 28 August 1972, behave himself with disrespect toward Lieutenant C_____ R______, his superior commissioned officer, by saying to him, “you little foreign made son of a b____,” or words to that effect.  He also made the statement, “you can get your neck broke for this,” or words to that effect;

   b.  having received a lawful command from Captain D____ L. F_______, his superior commissioned officer, to get a haircut, at Butzbach, Germany, on or about 24 August 1972, did willfully disobey the same;

   c.  at Butzbach, Germany, on or about 0730 hours, 25 August 1972, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:  Butzbach Military Police Station;

   d.  at Butzbach, Germany, on or about 28 August 1972, fail to obey a lawful general regulation, to wit:  paragraph 5d and paragraph 61, USAREUR Regulation 190-3, dated 29 October 1970, by owning and operating an unregistered vehicle; and

   e.  at Butzbach, Germany, on or about 28 August 1972, wrongfully appropriate two USAREUR license plates, to wit:  TP-52__, of some value, the property of the U.S. Army.

7.  On an unspecified date, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant’s request for discharge shows he had not been subject to coercion with respect to his request for discharge.  The applicant’s request also shows he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant elected not to submit any statements in his own behalf.  The applicant’s request for discharge also shows he was provided counsel by Captain D_____ E. T_____ on 22 November 1972.

8.  On 24 November 1972, the Acting Commander, Company A, 709th Military Police Battalion (Germany), recommended approval of the applicant’s request for discharge from the Army, under the provisions Army Regulation 635-200, 
chapter 10.  The acting commander stated the applicant had been counseled repeatedly by his superior commissioned officers and noncommissioned officers concerning intermittent infractions indicative of his undesirable conduct and generally insufficient performance of his duties.  The acting commander noted that on 12 July 1972 the applicant was offered nonjudicial punishment for violation of Article 92, UCMJ, which he refused to accept and that the applicant was pending trial by court-martial based on the charges that were currently filed against him.  The acting commander indicated that he felt the applicant’s retention in the service would have very limited rehabilitative effects resulting in little benefit to the Army, society, or the applicant.  He added that there was no indication to believe that at any time the applicant was mentally defective, deranged, or otherwise abnormal.  The acting company commander recommended the applicant be furnished an Undesirable Discharge Certificate.

9.  On 27 November 1972, the Commander, 709th Military Police Battalion (Germany), recommended approval of the applicant’s request for discharge from the Army, under the provisions chapter 10 of Army Regulation 635-200.  The battalion commander recommended the applicant be furnished an Undesirable Discharge Certificate.

10.  On 27 November 1972, the Commander, U.S. Army Engineer Command, Europe (USAREUR), recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions Army Regulation 635-200, chapter 10.  The commander also recommended the applicant be furnished an Undesirable Discharge Certificate.

11.  On 1 December 1972, the Commander, V Corps (USAREUR), reviewed and approved the applicant’s request for discharge for the good of the service.  The commanding general also directed the applicant be reduced to the grade of private (PV1)/E-1 and furnished an Undesirable Discharge Certificate, under the provisions of Army Regulation 635-200, chapter 10, with Separation Program Number (SPN) 246.
12.  The applicant's military personnel records contain his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty on 8 October 1971.  He was subsequently discharged on
8 December 1972, with service characterized as under conditions other than honorable in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service with SPN 246, and issued an Undesirable Discharge Certificate.  The DD Form 214 also shows that at the time of the applicant's discharge, he had completed 1 year, 1 month, and 5 days of net active service and 6 months and 21 days of foreign service.  Item 26a (Non-Pay Periods Time Lost) shows the applicant had time lost from 24 February to         20 March 1972.

13.  The applicant’s records are absent any evidence that he was “held more than 60 days in the Mannheim Stockade in Germany during October and November of 1972 without formal charges or a trial.”

14.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

15.  The applicant’s military personnel records contain a DD Form 293, dated     1 June 1975, that shows the applicant requested upgrade of his undesirable because the punishment he received far outweighed any criminal offense he may have committed.  Records show the applicant personally appeared before the Army Discharge Review Board (ADRB) on 16 June 1976.  On 3 February 1977, the ADRB, after careful consideration of the applicant’s military records and all other available evidence, determined the applicant was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.  The applicant was notified of ADRB’s decision on 8 April 1977.

16.  The applicant’s military personnel records contain two DD Forms 293, dated
23 January 1983 and 28 June 1983, that show the applicant requested upgrade of his undesirable discharge to an honorable discharge because he was misled to believe he would receive the training of his choice coupled with the duty station of his choice.  Records show the applicant personally appeared before the ADRB on 28 June 1983.  On 5 July 1983, the ADRB, after careful consideration of the applicant’s military records and all other available evidence, determined the applicant’s discharge was proper and equitable.  Accordingly, the applicant’s appeal was denied and he was notified of ADRB’s decision on
28 November 1983.



17.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon ETS; authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and undesirable discharge certificates.  Chapter 10 of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service in lieu of trial by court-martial.

18.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

19.  Army Regulation 635-5-1 (SPN Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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, in effect, that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge because he was barely 18 years of age, was not under any disciplinary action at the time, and was led to believe that he was signing an agreement to retire for the good of the service based on the U.S. Army's inability to place him in the duty position for which he was trained.



2.  The evidence of record shows the applicant enlisted for ACG 71, he was trained in MOS 71B (Clerk Typist), awarded MOS 71B1O (Clerk Typist), and assigned in Duty MOS 71B1O (Clerk Typist) with the 61st Military Police Detachment (USAREUR).  Thus, the evidence of record refutes the applicant’s 
contention that the U.S. Army did not fulfill the applicant’s enlistment option for training in ACG 71 by not placing him in a duty position for which he was trained (i.e., MOS 71B).

3.  The evidence of record shows the applicant was 18 years of age when charges were preferred against him that resulted in him submitting his request for discharge for the good of the service.  The evidence of record also shows the applicant was not subject to coercion with respect to his request for discharge.  In addition, there is no evidence that indicates the applicant was misled to believe he was signing an agreement to retire for the good of the service.  Thus, the evidence of record fails to support the applicant’s contentions in this instance.

4.  The evidence of record confirms that the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows that charges were preferred against the applicant, the punishment for which included a bad conduct or dishonorable discharge.  In addition, records show that he completed only 13 months of his
3-year enlistment.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.



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)                                         AR20080017638



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ABCMR Record of Proceedings (cont)                                         AR20080017638



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