BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013251 


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 conditions discharge to a general under honorable conditions discharge.

2.  The applicant states that his discharge should be upgraded because of the lack of proper representation prior to the proceedings of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 11 March 1976; two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), dated 23 July 2009; copies of DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 15 June 1973 and 29 May 1973; and a copy of an administrative discharge sheet 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 record shows he enlisted in the Regular Army for a period of 4 years on 10 November 1972.  He completed basic combat training at Fort Ord, CA, and proceeded to Fort Knox, KY, for completion of advanced individual training (AIT) in military occupational specialty 11E (Armor Crewmember).  He was assigned to Company A, 3rd Battalion, 1st Training Brigade, U.S. Army Armor Center.

3.  On 5 November 1975, while attending AIT, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty (guard mount) on or about 19 February 1973.  His punishment consisted of a forfeiture of $70.00 per month for 1 month and 7 days of confinement in the correctional custody facility.

4.  On 14 March 1973, the applicant departed his AIT unit in an absent without leave (AWOL) status; however, he returned on 19 March 1973.

5.  On 19 March 1973, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 14 March 1973 through on or about 19 March 1973.  His punishment consisted of a forfeiture of $150.00 pay and a reduction to private/E-1 (suspended for 2 months).

6.  Subsequent to completion of AIT, the applicant was reassigned to Germany on or about 25 April 1973.  He was assigned to Troop K, 3rd Squadron, 2nd Armored Cavalry Regiment.

7.  On 29 May 1973, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for violating a general regulation by not properly registering a motor vehicle on or about 9 May 1973, operating a motor vehicle with license plates belonging to another Soldier on or about 9 May 1973, and operating a motor vehicle without a valid driver's license on or about 9 May 1973. 
His punishment consisted of a forfeiture of $50.00 pay for 1 month.

8.  On 15 June 1973, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on or about 15 June 1973 and being disrespectful to a superior noncommissioned officer on or about 15 June 1973.  His punishment consisted of a forfeiture of $75.00 pay for 1 month.

9.  On 1 July 1973, the applicant departed his unit in an AWOL status.  He returned on 9 July 1973.

10.  On 7 September 1973, the applicant again departed his unit in an AWOL status and was subsequently dropped from the Army rolls on the same date.

11.  The applicant's records show that while in a deserter status, the applicant contacted the Department of the Army on 29 October 1974 and requested participation in the program established by Presidential Proclamation 4313, dated 16 September 1974.  However, he was notified by letter, dated 4 November 1974, that after a review of his service records, he was determined ineligible for participation in this program since his period of AWOL did not fall within the period from 4 August 1964 to 28 March 1973.

12.  The applicant's records further show he surrendered to the Federal Bureau of Investigation in Houston, TX, on 19 November 1975 and was returned to military control at Fort Hood, TX.

13.  On 12 January 1975, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 7 September 1973 through on or about 19 November 1975.

14.  On 25 November 1975, 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 or dishonorable discharge, 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 635-200 (Personnel Separations - Enlisted Personnel).

15.  In his request for discharge, the applicant indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person and that although he was provided with legal advice, the decision for the request for discharge was his.  He also indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense.  He further acknowledged he understood that if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further submitted a statement on his own behalf in which he stated:

	a.  He initially intended to make the Army a career; however, as he began to see how the Army operated, he changed his mind.  Since his arrival to his unit in Germany, he was assaulted.  Yet he was written up for what he said when he was assaulted.

	b.  He sought help from the chain of command and the legal office but no one would help him.  He left Germany with no regrets.

16.  On 13 January 1976, the applicant's immediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander further remarked that he personally interviewed the applicant and it was felt that rehabilitation was not in the best interest of the applicant or the Army.

17.  On 14 January 1976, the applicant's intermediate commander also recommended approval with the issuance of an Undesirable Discharge Certificate.

18.  On 20 January 1976, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 11 March 1976, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for conduct triable by court-martial with a character of service of under other than honorable conditions and issued a DD Form 258A (Undesirable Discharge Certificate).  This form further confirms he completed 11 months and 15 days of creditable active military service and had 869 days of lost time.

19.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

20.  The applicant submitted two VA Forms 21-4138, dated 23 July 2009, in which he states that there were extenuating circumstances associated with his AWOL.  During his first period of AWOL, he was involved in an automobile accident and suffered injuries that required hospitalization.  Additionally, due to the racial situation at his duty station in Germany, he was assaulted and threatened; he tried seeking help from his chain of command but no one would help him.  He was then set up for a drug bust and was scared of going to prison.  He was away from home, surrounded by people who did not like him, so he decided to go AWOL.  He ultimately turned himself in and tried to seek assistance but ended up being shuffled through the system without proper counsel.  He wants the Board to know that his intention was to make the Army a career.  Subsequent to his discharge, he gained employment in a position that required good work skills, ethics, and judgment, and he is now a successful sales manager in one of Houston's largest retail automobile dealerships.

21.  Army Regulation 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.  However, at the time of the applicant's separation, an undesirable discharge was considered appropriate.

22.  Army Regulation 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

23.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Subsequent to consulting legal counsel, the applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He also indicated that although he was provided with legal advice, the decision to request discharge was his.  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.

3.  There is no evidence in the applicant's records and the applicant provided none to substantiate the racial issues he raised.  Additionally, although not directly related to the court-martial charges that led to his discharge, the applicant's overall service record is marred with an extensive history of indiscipline that started in AIT and continued throughout his military service.

4.  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 failed to submit evidence that would satisfy this requirement.  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)                                         AR20090013251



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ABCMR Record of Proceedings (cont)                                         AR20090013251



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