IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009 

		DOCKET NUMBER:  AR20090006391 


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 under other than honorable discharge to an honorable discharge.

2.  The applicant states that he was young at the time and did not really appreciate his military service.  He further states that his problems were essentially caused by the Army which did not train him within his abilities and tried to make him a cook or a mechanic and that if the Army had allowed him other opportunities, his military service would have been different.  He adds that he realized his potential while stationed at Fort Myer, VA, where he was allowed to be a driver.  He loved that job and was even selected to be a driver for a General Officer and the first Sergeant Major of the Army.  He also adds that he personally experienced prejudice and racism at the time.  He further adds that he takes responsibility for some of his action such as being absent without leave (AWOL) and the wearing of unauthorized medals.  However, after his discharge, he moved on and was involved in something divine when God personally chose him to become a minister.  He subsequently helped found a church, which has changed his life and made him a better person overall. 

3.  The applicant provides a copy of his birth certificate, dated (issued) 6 February 2004; a copy of an undated Department of Veterans Affairs (VA) Form 9 (Appeal to the Board of Veterans' Appeals); a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 8 February 1971; a copy of an undated letter from the Department of Veterans Affairs pertaining to a hearing that was scheduled on 7 October 2008; and a copy of a character reference letter, dated 8 February 2009, in support of his request.
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 records show he enlisted in the Regular Army for a period of 3 years on 4 December 1964.  Item 15 (Date of Birth) of his DD Form 4 (Enlistment Contract) shows he was born on 8 February 1945.  The applicant authenticated this form by placing his signature in the appropriate block.  He was subsequently assigned to Fort Jackson, SC, for completion of basic combat training.

3.  On 5 February 1965, the applicant pleaded guilty at a Special Court-Martial to one specification of being absent without leave (AWOL) during the period on or about 11 January 1965 to on or about 22 January 1965 and one specification of breaking restriction.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $52.00 pay for 6 months.  The sentence was adjudged and approved on 5 February 1965.  However, the convening authority approved a reduced forfeiture of $25.00 pay per month for 6 months and suspended the confinement at hard labor for 6 months for a period of 6 months.

4.  On 8 March 1965, the convening authority ordered the applicant's suspended sentence to confinement at hard labor for 6 months vacated and the unexecuted portion of the sentence executed and, on 4 June 1965, he suspended the unexecuted portion of the sentence for a period of 4 months, effective 5 June 1965.

5.  On 27 August 1965, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on or about 25 August 1965.  His punishment consisted of a forfeiture of $18.00 pay and 14 days of restriction.

6.  On 24 February 1966, the applicant pleaded guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 2 September 1965 to on or about 5 January 1966.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $35.00 pay for 6 months.  The sentence was adjudged on 24 February 1966 and was approved on 3 March 1966.

7.  On 9 March 1966, the convening authority suspended the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months for a period of 5 months effective 11 March 1966.

8.  On 7 April 1966, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for violating a lawful general regulation by having explosives stored in his wall-locker on or about 5 April 1966 and breaking restriction on or about 5 April 1966.  His punishment consisted of a forfeiture of $26.00 pay for 2 months, a reduction to private (PVT)/E-1, and 30 days of Correctional Custody Facility (CCF).  However, on 20 May 1966, the imposing officer ordered the portion of punishment to forfeiture in excess of $10.00 remitted.

9.  On 16 May 1966, the applicant pleaded guilty at a Special Court-Martial to one specification of wrongfully wearing an unauthorized Combat Infantryman Badge and Parachutist Badge upon his uniform on or about 6 April 1966, being AWOL during the period on or about 9 April 1966 to on or about 18 April 1966, and breaching the restraint imposed while undergoing the punishment of CCF on or around 9 April 1966.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $55.00 pay for 6 months.  The sentence was adjudged on 16 May 1966 and was approved on 27 May 1966.

10.  On 3 June 1966, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his various incidents of misconduct.  The applicant was furnished with a copy of this certificate; however, he elected not to make a statement on his own behalf.   The certificate was ultimately approved by the approval authority on 26 June 1966.

11.  On 13 October 1966, the applicant plead not guilty at a General Court-Martial to one specification of willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 25 August 1966 and one specification of being disrespectful in language toward a superior NCO on or about 25 August 1966.  The Court found him guilty of the charge and specifications, sentenced him to a forfeiture of all pay and allowances, confinement at hard labor for 6 months, and a bad conduct discharge.  The sentence was adjudged and approved on 13 October 1966.

12.  On 12 December 1966, the applicant pleaded guilty at a Special Court-Martial to one specification of aiding in the assault of another Soldier by holding him while he was being struck by others.  The Court sentenced him to confinement at hard labor for 5 months and a forfeiture of $37.00 pay for 5 months.  The sentence was adjudged on 12 December 1966. 

13.  On 16 December 1966, the convening authority approved the applicant's sentence, adjudged by the General Court-Martial that convened on 13 October 1966, and ordered the record of Trial be forwarded to The Judge Advocate General of the Army for review.

14.  On 6 January 1967, the convening authority approved the applicant's sentence adjudged by the Special Court-Martial that convened on 12 December 1966.

15.  On 30 June 1967, the General Court-Martial convening authority ordered the applicant restored to duty pending completion of the appellate review and the portion of the sentence adjudging forfeitures not apply to pay and allowances becoming due during the period commencing on 20 June 1967 and terminating on the date the convening authority directs execution of the sentence.

16.  On 5 May 1967, the U.S. Army Military Board of Review affirmed the approved findings of guilty and the sentence of the General Court-Martial.

17.  On 19 May 1967, the U.S. Court of Military Appeals granted the applicant a review of the decision of the U.S. Army Military Board of Review.

18.  On 1 July 1967, the U.S. Army Judiciary, Office of The Judge Advocate General of the Army determined the findings of guilty were incorrect in law and fact and ordered them set aside and the charge and its specification dismissed.

19.  On 21 August 1967, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failure to go at the time prescribed to his appointed place of duty on or about 20 August 1967.  His punishment consisted of a forfeiture of $20.00 pay for 2 months and 14 days of extra duty.

20.  On 2 May 1968 the applicant pleaded guilty at a Special Court-Martial to several specifications on or about 23 March 1968, including being disorderly at the Consolidated Mess Hall, disobeying a lawful order from a commissioned officer, offering violence against a commissioned officer by trying to strike him, willfully destroying Consolidated Mess Hall utensils of a value of about $12.00 to $14.00, and resisting being lawfully apprehended by a commissioned officer and an armed force policeman.  The Court sentenced him to performance of hard labor for 6 months and reduction to PVT/E-1.  The sentence was adjudged and approved on 13 May 1968.

21.  On 21 May 1968, court-martial charges were preferred against the applicant for various specifications on or about 3 May 1968, including willfully disobeying a lawful order from a superior NCO, bringing discredit upon the Armed Forces by having a bottle containing liquor within his motor vehicle, being disorderly, and resisting being lawfully apprehended by and armed forces policeman.  

22.  On 9 July 1968, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

23.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or an undesirable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (Department of Veterans Affairs (VA)), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

24.  On 16 July 1968, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being absent without proper authority from his appointed place of duty on or about 14 July 1968.  His punishment consisted of a forfeiture of $31.10 pay.

25. On an unknown date in July 1968, the applicant’s senior commander recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.  

26.  On 2 August 1968, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Undesirable Discharge Certificate.  On 20 August 1968, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 year, 5 months, and 15 days of creditable active military service and had 457 days of lost time.  

27.  On 21 July 1970, the applicant enlisted in the Regular Army for a period of 3 years.  Item 21 (Date of Birth) of his DD Form 4 again listed his date of birth as 8 February 1945.  He was assigned to Aberdeen Proving Ground (APG), MD.

28.  On 18 November 1970, the Aberdeen Field Office of the U.S. Army Criminal Investigation Command (USACID) conducted an investigation after receiving a letter by mail from the applicant’s wife that she believed he was bigamously married.  The investigation disclosed on 3 September 1963, the applicant married one spouse in Baltimore, MD, and on 13 April 1965, he married another spouse in Waukegan, IL, with no divorce obtained from the first spouse. 

29.  On 19 November 1970, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for violating APG traffic regulations by passing another vehicle by going over the double solid yellow line on or about 5 November 1970.  

30.  On 14 December 1970, court-martial charges were preferred against the applicant for one specification of procuring an enlistment in the Army by means of knowingly false representation that he was honorably discharged, had no lost time, and concealed his bar to reenlistment, on or about 21 July 1970; one specification of falsely signing an official enlistment record by claiming he was previously honorably discharged in the rank of specialist four and with no lost time, on or about 21 July 1970; one specification of falsely signing a DA Form 20 (Enlisted Qualification Record) and claiming he served in Vietnam, participated in two campaigns, and was awarded the Vietnam Campaign Medal, on or about 10 August 1970; one specification of signing an Application for Uniformed Services Identification and Privilege Card and falsely claiming he was not married to his first spouse on or about 10 August 1970; one specification of wrongfully wearing the Vietnam service Medal, the Vietnam Campaign Medal, the Parachutist Badge, and the Combat Infantryman Badge, on or about 9 October 1970; one specification of wrongfully altering his rank, overseas service, award and decorations, character of service and reentry code on his previously issued  DD Form 214, on or about 21 July 1971; and one specification of wrongfully and bigamously marry a second spouse while still married to the first, on or about 13 April 1968.  



31.  On 30 December 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he again requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

32.  In his request for discharge, the applicant again indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (Department of Veterans Affairs (VA)), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

33.  During the period 31 December 1970 and 14 January 1971, the applicant’s chain of command, including his immediate, intermediate, senior, and general Officer commanders recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.  

34.  On 27 January 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 8 February 1971, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 6 months and 14 days of creditable active military service during this period of service and had 4 days of lost time.  

35.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 
15-year statute of limitations.  

36.  The applicant submitted a copy of his birth certificate, issued on 6 February 2004, which shows he was born on 8 February 1948.

37.  The applicant submitted a character reference letter, dated 8 February 2009, from his pastor, in which the pastor states that he has known the applicant for nine years and that he is a man after God’s own heart.  He further comments on his dedication to the church, loyalty to the ministry, and integrity.

38.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

39.  AR 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

40.  AR 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant was 19 years of age at the time of his first enlistment as he listed his date of birth as 8 February 1945 when he enlisted in December 1964.  Additionally, he was between the ages of 19 and 23 when he committed his extensive history of misconduct.  Furthermore, he was 25 years of age when he enlisted in 1970.  However, there is no indication that the applicant’s indiscipline and/or misconduct were the result of his age or that the applicant was any less mature than other Soldiers who successfully and honorably completed their military service.

3.  The applicant’s contention that he personally encountered prejudice and/or racism is noted.  However, there is no indication that he addressed such issues with his chain of command at any of his units of assignment or other support channels.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows that his extensive history of misconduct was a result of a prejudice and/or racism.  Even if he encountered such issues, he had many legitimate avenues through which he could have received assistance or relief, had he chosen to use them.

4.  Contrary to the applicant’s contention that his misconduct was caused by the Army, his record shows that he had an extensive history of indiscipline that include a bar to reenlistment, 6 instances of courts-martial, 5 instances of NJP, multiple instances of AWOL and/or confinement, for various infractions that range from minor infractions of disobeying orders to more serious misconduct of AWOL, forgery, storing explosives in a wall-locker, and resisting apprehension by an armed forces policeman.  Furthermore, contrary to his contention that his troubles started when he was young, the evidence of record shows that his indiscipline spanned throughout his military service.

5.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, 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.  

7.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090006391



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ABCMR Record of Proceedings (cont)                                         AR20090006391



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