IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100025353 


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 upgrade of his undesirable discharge to a general discharge.

2.  He states he believes his record to be in error or unjust for the following reasons:

* he was accused of robbing a service member because he was with the two people who did
* he did not know the robbery was about to take place
* he informed his commander of the events
* he wanted to fight the charge, but he was advised by his lawyer to take the discharge in order to avoid a court-martial or possible imprisonment

3.  Although he contends that he is not accusing his former chain of command of being prejudiced, he believes that if he were white, the punishment would have been less severe and believes he was treated unfairly due to his race.  He admits that he displayed bad judgment in not notifying his chain of command immediately; however, bad judgment is not a criminal act. 

4.  He provided:

* a certified copy of his DD Form 214 (Report of Separation from Active Duty)
* four character reference letters

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 January 1974.  After completing training, he served in military occupational specialty 16R (Vulcan Crewman).

3.  A review of his record shows he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 7 February 1975 for going absent without leave (AWOL) from
13 to 20 January 1975 and disobeying a lawful regulation
* 26 February 1975 for failing to go at the time prescribed to his appointed place of duty
* 12 May 1975 for breaking restriction on 24 April 1975

He accepted each of the Article 15's and he did not appeal the punishments imposed by the issuing authority.

4.  His record contains a DD Form 458 (Charge Sheet), dated 4 April 1975, which shows that charges were preferred against him for two specifications of violating Article 122 of the UCMJ:

	a.  Specification 1 - On 29 March 1975 for stealing 100 Deutshe Marks from another Soldier by means of force and violence; and

	b.  Specification 2 - On 1 April 1975 for stealing $80.00 from the same Soldier by means of force and violence.

5.  His record contains three additional DD Forms 458 that show charges were preferred against him for:

	a.  One specification of violating Article 128 of the UCMJ on 22 April 1975 for committing assault upon another Soldier by drawing a knife on him;

	b.  One specification of violating Article 134 of the UCMJ on 6 May 1975 for breaking restriction; and

	c.  One specification of violating Article 134 of the UCMJ on 17 May 1975 for breaking restriction.  

6.  On 23 May 1975, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of court-martial.  In his application for discharge, he stated that he understood he could request discharge because charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or a dishonorable discharge.  He further stated that he was making his request for discharge of his own free will and had not been subjected to any coercion whatsoever by any person.

7.  Prior to completing his request for discharge, he had been given the opportunity to consult with counsel.  His record shows counsel stated he had fully advised the applicant of the nature of his rights under the UCMJ.  Although counsel had furnished him legal advice, the decision to seek discharge was his own.

8.  He also stated he understood that if his discharge were accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  Additionally, he stated that he had been advised and understood the possible effects of an undesirable discharge.  If his request was approved, he was aware of the procedures and rights available to him.  He also elected not to make any statements in his own behalf.  

9.  His chain of command recommended approval of his request for discharge and further recommended the issuance of an undesirable discharge.

10.  On 13 June 1975, the general court-martial convening authority approved his voluntary request for discharge in lieu of trial by court-martial.  He directed the issuance of an Undesirable Discharge Certificate and reduction to private (PV1)/E-1.

11.  On 23 June 1975, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge, characterized as under other than honorable conditions.  He had completed 1 year, 5 months, and 8 days total active service with 8 days of time lost.

12.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows that he was awarded the National Defense Service Medal.  His record contains no documentary evidence of acts of valor or achievement which warrant special recognition.

13.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  On
1 August 1977, after careful consideration of his records and all other available evidence, the ADRB determined that he had been properly discharged and denied his request for an upgrade.  

14.  On 12 December 1978, the Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, notified him of his rights based on Court Decision Number 76-0530, dated 23 August 1978, which provided for a new hearing under the provisions of the Special Discharge Review Program or a new hearing to regain Veterans Benefits.  This letter stated he must apply for consideration under this program and provided him with a new application.

15.  On 26 June 1979, the ADRB reviewed his records a second time for consideration to upgrade his discharge and determined that he was properly discharged.  Accordingly, his request was denied.

16.  He provided four personal character reference letters.  These letters provide the following comments:

	a.  (The applicant) has worked for him as an independent contractor for over 10 years, performing landscaping and grounds maintenance.  He has found that (the applicant) is honest, dependable, courteous, and hard working.  He wholeheartedly would recommend him for similar employment.

	b.  (The applicant) has provided lawn service for him and his wife for over a year.  He is completely reliable and always friendly.  He goes out of his way to make sure things are done appropriately and it has been a real pleasure having him take care of their home and office.

	c.  (The applicant) is one of the most dependable, honest and hard working persons that I have had the opportunity to know over the past 15 years.  He and (the applicant) have worked side-by-side in his large yard and gardens.  His knowledge of plants and of small power tools also comes in handy from time to time.

	d.  The Director of Member Services, Without Walls International Church, verified that (the applicant) is a current member in good standing and began his membership in June 2004.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

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 separation specifically allows such characterization.

19.  In the case of Urban Law Institute of Antioch College, Incorporated vs. Secretary of Defense, Civil Number 76-0530, dated 23 August 1978, the court required the armed services to notify former service members of their right to a new review of their discharges.  Beginning 31 January 1977, Discharge Review Boards would make statements of findings and reasons for their decisions.

20.  The Special Discharge Review Board Program, often referred to as the “Carter Program,” was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria.

21.  Public Law 95-126, enacted on 8 October 1977, provided generally, that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD Special Discharge Review Program.  It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases which met those standards.

DISCUSSION AND CONCLUSIONS:

1.  His contention that he was treated unfairly by his chain of command, mainly due to his race, is not supported by the evidence of record.  The evidence of record shows he was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army, in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.

2.  The available evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was fully aware of this prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service are both proper and equitable.

3.  His entire record of service was reviewed and his record contains an extensive history of disciplinary actions, including NJP under Article 15 of the UCMJ.

4.  There is no evidence of record and the applicant did not provide any evidence that shows he received Article 15 punishment in excess of any other Soldier charged with his same offenses.  Had he felt he was receiving more punishment than other Soldiers because of his race he could have appealed his Article 15 punishments, which he did not, or seek assistance through other available organizational or installation support agencies.

5.  His record contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his undesirable discharge.

6.  The quality of his post-service conduct was also considered.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade of his undesirable discharge to a general discharge.


7.  In view of the foregoing, there is no basis for granting his request for an upgrade of his undesirable 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)                                         AR20100025353



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ABCMR Record of Proceedings (cont)                                         AR20100025353



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