IN THE CASE OF:	

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090016226 


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, that his undesirable discharge be upgraded.

2.  The applicant states, in effect, that he suffered an injustice as a result of racial issues at the time.  He also states that not all the facts surrounding his circumstances were considered and he believes there may have been some falsification of documents to bring harm to him. 

3.  The applicant did not submit any additional documentary evidence 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 2 years on 28 January 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76A (Supply Clerk).  The highest rank/grade the applicant attained during his military service was private first class/E-3.

3.  The applicant's records show he served in Germany from on or about 9 July 1969 to 30 January 1970 and Vietnam from on or about 8 March to 7 September 1970.  He was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and one overseas service bar. 

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 1 May 1969, for wrongfully using provoking words towards a superior noncommissioned officer (NCO) on or about 30 April 1969.  His punishment consisted of a forfeiture of $23.00 pay, 14 days of restriction, and 14 days of extra duty; 

	b.  on 24 January 1970, for absenting himself from his appointed place of duty on or about 23 January 1970.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $63.00 for 2 months (1 month suspended until 
26 February 1970), and 30 days of extra duty (21 days suspended); 

	c.  on 6 March 1970, for being absent without leave (AWOL) during the period on or about 22 February 1970 through 2 March 1970.  His punishment consisted of a reduction to private (PV2)/E-2 and a forfeiture of $63.00 pay for 2 months; and

	d.  on 26 March 1970, for disobeying a lawful order from a superior NCO on or about 25 and 26 March 1970; and being disrespectful in language towards a superior NCO on or about 25 March 1970.  His punishment consisted of a reduction to private (PV1)/E-1 and a forfeiture of $65.00 pay. 

5.  On 9 June 1970, the applicant pled not guilty at a special court-martial to two specifications of willfully disobeying a lawful order from a superior NCO on or about 14 and 15 May 1970; one specification of failing to go at the time prescribed to his appointed place of duty on or about 14 May 1970; one specification of disrespecting a superior commissioned officer on or about 14 May 1970; two specifications of willfully disobeying a lawful order from a superior commissioned officer on or about 14 and 15 May 1970; and one specification of striking a commissioned officer in the face with his first on or about 15 May 1970.  The court found him guilty of all specifications (except the specification of willfully disobeying a lawful order from a superior NCO on or about 14 May 1970).  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $94.00 pay for 6 months.  The sentence was adjudged on 9 June 1970.

6.  On 4 July 1970, the convening authority approved a lesser sentence of a forfeiture of $88.00 pay for 6 months and confinement at hard labor for 6 months (both suspended for 6 months). 

7.  On 5 July 1970, the convening authority ordered 30 days of the suspended portion of the sentence to confinement at hard vacated and duly execute.  The remaining portion of the sentence to confinement was suspended for a period of 5 months.  Subsequently, that portion of the sentence in excess of the forfeiture of $40.00 pay for 6 months was set aside.

8.  On 18 July 1970, court-martial charges were preferred against the applicant for several charges and/or specifications as follows:

	a.  Charge I, one specification of willfully disobeying a lawful order from a superior commissioned officer, on or about 28 June 1970; 

	b.  Charge II, two specifications of disobeying a lawful order from a superior NCO, on or about 20 and 28 June 1970; four specifications of willfully disobeying a lawful order from a superior petty officer on or about 20 June 1970; and four specifications of being disrespectful in language and deportment towards a superior petty officer on or about 20 June 1970;

	c.  Charge III, one specification failing to obey a lawful written order by placing a magazine in his M-16A1 rifle on or about 30 June 1970; 

	d.  Charge IV, one specification of breaking arrest after having been duly placed in arrest at his company area on or about 28 June 1970; and

	e.  Charge V, one specification of being disorderly and disrupting the good order of the mess deck by creating a disturbance while crew members and patients were trying to eat on or about 20 June 1970.  

9.  On 17 August 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 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).

10.  In his request for discharge, the applicant acknowledged he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  On 17 August 1970 and 22 August 1970, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.  

12.  On 31 August 1970, 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 he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 7 September 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of a court-martial with an undesirable discharge.  This form further confirms he completed a total of 1 year, 7 months, and 10 days of creditable active military service.

13.  On 8 March 1976 and 19 January 1982, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

14.  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, an undesirable discharge was considered appropriate at the time.


15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 record shows he was charged with the commission of various offenses 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.  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.  The applicant’s narrative reason for discharge is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  There is no evidence in the available records and the applicant failed to provide any evidence to substantiate his contention of racism or to show he addressed this issue with his chain of command and/or other support channels.  Additionally, there is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  

4.  Based on the applicant’s disregard for military authority and extensive record of indiscipline, his service clearly does 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)                                         AR20090016226



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ABCMR Record of Proceedings (cont)                                         AR20090016226



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