IN THE CASE OF:
BOARD DATE: 13 September 2011
DOCKET NUMBER: AR20110005306
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 his under other than honorable conditions discharge be upgraded to an honorable discharge.
2. The applicant states he agreed to accept an undesirable discharge rather than face a court-martial. His military lawyer advised him that he probably could not beat the charges because of racial attitudes at the time and his previous record of assault. He was not guilty of the charges he was just disgusted with everything and decided to accept the offer. He never refused orders from proper authority nor was he a trouble maker.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 applicants 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 applicants 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 was inducted into the Army of the United States on 23 April 1969 and he held military occupational specialty 11B (Light Weapons Infantryman). He was awarded the National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal.
3. On 13 September 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 12 to 13 September 1969.
4. He served in Vietnam from 6 December 1969 to 20 October 1970 while assigned to the 2nd Battalion, 27 Infantry Regiment, 25th Infantry Division.
5. On 14 January 1970, he received NJP under the provisions of Article 15, UCMJ, for abandoning his guard position.
6. On 11 April 1970, he was convicted by a special court-martial on two specifications of being disrespectful to an officer and one specification of assaulting an officer.
7. On 11 August 1970, court-martial charges were preferred against him for one specification of unlawfully entering the noncommissioned officers club (NCO) and one specification of attempting to steal alcohol from the NCO club.
8. On 14 September 1970, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge 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.
9. Following consult with legal counsel, he 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 trial by court-martial. He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.
10. On 23 September 1970, his immediate commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate. The commander stated the applicant had been AWOL on several occasions, had a record of disciplinary actions taken against him, repeatedly failed to report for duty, and had much difficulty with NCOs and officers. He further stated on 9 August 1970 there was a break-in at the NCO club and the applicant was picked out of a lineup by witnesses. Since the incident the applicant had completely refused to do any duties he was assigned or ordered to do and the applicant stated he just wanted out of the military.
11. On 25 September 1970, his senior commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.
12. On 16 October 1970, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a separation program number of 246 and directed the issuance of an Undesirable Discharge Certificate.
13. On 21 October 1970, 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 with an under other than honorable conditions characterization of service. The DD Form 214 he was issued shows he completed 1 year, 5 months, and 26 days of active service with 3 days of time lost.
14. On 8 June 1972, the Army Discharge Review Board denied his request for an upgrade of his discharge.
15. On 1 May 1974, the ABCMR denied his request for an upgrade of his discharge and determined there was insufficient evidence to indicate a probable material error or injustice occurred.
16. 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. 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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. At the time, an Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.
17. 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.
18. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. As such, he voluntarily requested discharge to avoid a trial by court-martial.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. Prior to submitting his request for a discharge, he was properly and fully advised by his counsel of 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.
3. His record of service shows he received NJP on two occasions and was convicted by a special court-martial for being disrespectful to an officer and for assaulting an officer. Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to an honorable or a general 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) AR20110005306
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110005306
5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090016226
The applicant requests, in effect, that his undesirable discharge be upgraded. 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. Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.
ARMY | BCMR | CY2008 | 20080015194
The applicant was accordingly discharged on 3 July 1969. Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time. 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.
ARMY | BCMR | CY2011 | 20110021587
The applicant requests an upgrade of his under other than honorable conditions discharge. Accordingly, the applicant was discharged on 3 February 1970. There is no evidence that the applicant's repeated misconduct, beginning with his disregard of authority in Vietnam and ending with the court-martial charges, was a result of his Vietnam service.
ARMY | BCMR | CY2009 | 20090021692
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. At the time the discharge was referred to as an undesirable discharge. While the applicant did serve in combat and received the Purple Heart, this service does not outweigh his 11 NJP's (including sleeping on guard duty in a combat zone), two special courts-martial, and 365 days of lost time, a pattern of misconduct that covered his entire period of service.
ARMY | BCMR | CY2012 | 20120019372
The applicant requests an upgrade of his under other than honorable conditions discharge to a general discharge or an honorable discharge. He pleaded not guilty to all specifications and charges and was found guilty of: * Charge I, Specifications 1 and 2 * Charge II, Specification 2 * Charge IV c. He was sentenced to be confined at hard labor for 6 months. On 15 January 1971, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and...
ARMY | BCMR | CY2014 | AR20140010367
Since he had been assigned to CDCEC on 13 January 1970, there were only 11 days in which he was not facing charges, AWOL, or in confinement as a result of misconduct or a court-martial. The separation authority subsequently approved the applicant's request for a discharge and directed the issuance of an Undesirable Discharge Certificate. In addition, he went AWOL again prior to his return to military control on 4 November 1970 and he had almost 1 year of lost time due to being AWOL and/or...
ARMY | BCMR | CY2011 | 20110022610
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. He was transferred to Fort Hood, Texas on 17 May 1967 and during the period of 15 June 1967 to 4 January 1968, NJP was imposed against him on three occasions for being AWOL for 4 days, failure to go to his place of duty, disobeying lawful orders from NCOs. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2004 | 20040007809C070208
The applicant requests that his records be corrected by upgrading his discharge. 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. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.
ARMY | BCMR | CY2007 | 20070010486
He tried to complete his military service but could not cope with himself or anyone around him, so he went absent without leave (AWOL). The applicant's records show that he was inducted into the Army of the United States on 16 November 1967. 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...
ARMY | BCMR | CY2011 | 20110003635
On 17 March 1970, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate. On 30 March 1970, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an Undesirable Discharge Certificate. _______ _ X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the...