IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120007784 


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, an upgrade of his undesirable discharge to an honorable or a general discharge.

2.  The applicant states:

* during the beginning of his military service it was truly an honor to have joined the U.S. Army as the greatest branch of service
* he was proud to have made the choice of serving his country
* as time went by he started noticing traces of favoritism as well as racism at work
* his crew began to experience changes such as long work days, extremely hot and humid working conditions, no days off, no resting periods, no time for school, and an abusive chain of command
* after an AN/RPC-77 radio that could not be located was found in his personal area, he was charged with misappropriation of property
* his inability to communicate with his superiors because of his poor English language skills prevented him from defending himself
* he voluntarily enlisted to serve his country and all of his service up to that point was done with pride and responsibility, not to be shamefully prosecuted or discharged for something he did not do
* he strongly believes that his discharge was erroneous and was the result of not just a misunderstanding, but also an episode of discrimination

3.  The applicant provides an undated self-authored letter and his DD Form 214 (Report of Separation from Active Duty).

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 31 May 1974.  He completed training as a wireman.

3.  The applicant accepted nonjudicial punishment (NJP) on three separate occasions for the following offenses:

* pretending to be authorized to accept collect telephone calls on a military telephone, obtaining service of a value of about $800.00
* three incidents of failing to go to his appointed place of duty

4.  The applicant's Army Military Human Resource Record contains two Trainee Observation Reports.  One report was for failure to follow instructions and the other report was for a security violation.

5.  On 3 May 1976, the applicant was convicted pursuant to his plea by a special court-martial of wrongfully appropriating an AN/PRC-77 radio with accessories of a value of about $943.00.  He was sentenced to a bad conduct discharge (BCD), confinement at hard labor for 3 months, and a reduction in pay grade.

6.  During the applicant's trial, the judge made the following statement:

Considering the circumstances surrounding the taking of this radio, and considering all testimony including your own stated desire to remain in the service and earn an honorable discharge and testimony that in the opinion of some people, you can be rehabilitated, I recommend that the sentence to a BCD be suspended and further that if that recommendation is followed, that you be sent to the Army Retraining Brigade at Fort Riley, Kansas.  Now, if my recommendation is followed, you will have an opportunity to show that you are sincere in your desire to be a good soldier and that you can be a good soldier if given that opportunity.  However, the burden is going to be totally on you, because if you get in any further difficulty while that discharge is suspended, that suspension could be vacated and you would then receive a BCD.  So it's going to be up to you to demonstrate to the Army that you can be a good soldier and complete your period of service.

7.  The convening authority approved the sentence as adjudged, but the execution of that portion adjudging a BCD was suspended for 6 months at which time unless the suspension was vacated, the BCD was to be remitted without further action.

8.  The applicant was in the Army Retraining Brigade on 28 September 1976, when action to vacate his BCD suspension was initiated.  The commander cited the following as his basis for initiation of the suspension action:

* failure to obey a lawful order
* dereliction of duty
* wrongful possession of a bag of marijuana
* wrongful possession of a hand-rolled cigarette containing marijuana

9.  On 5 October 1976, the Commander, U.S. Army Retraining Brigade, concurred and approved a recommendation made by an Article 72 investigating officer and Staff Judge Advocate to drop the Article 72 proceedings in favor of vacation of the sentence to a BCD.

10.  On 17 December 1976, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  Along with his request for discharge he submitted a statement in his own behalf contending:

* he tried very hard under pressure and failed because he is losing both ways in his personal and family life
* he asked for the hard jobs offered in retraining to be able to keep his mind busy and not to think about his family and personal problems
* it was too much of a load and he failed again
* it had been 8 months since he saw his wife and son
* it was time for him to choose between his family and the Army
* he was satisfied that he had tried his best in the Army and failed
* as a human he was born to make mistakes and as a man he had his pride and had taken enough humiliation and harassment
* all he wanted was his freedom in a fair way so he could keep his family, get ahead, and make his time in the Army a good experience for the future

11.  The appropriate authority approved the request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 20 December 1976, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 4 months, and 6 days of total active service.  He was issued an Undesirable Discharge Certificate.

12.  On 7 February 1978, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 states 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 normally considered appropriate at the time of the applicant’s discharge.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  There is no evidence in the available record and the applicant has not submitted any evidence showing he was discriminated against and/or was unable to defend himself due to his inability to speak the English language.

3.  The available records show he had NJP imposed against him on three separate occasions for his acts of misconduct.  He was convicted of wrongfully appropriating a radio by a special court-martial pursuant to his plea.  He was sentenced to a BCD and was placed in the Army Retraining Brigade and given another chance to prove himself.  He continued his acts of misconduct and he lost his chance to show he could be a good Soldier.

4.  He submitted request for discharge for the good of the service in lieu of trial by court-martial.  He has provided insufficient evidence to show the type of discharge he received was erroneous and/or unjust.

5.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20120007784



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ABCMR Record of Proceedings (cont)                                         AR20120007784



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