IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120021329 


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.

2.  The applicant states:

* an injustice caused him to resign from the military that he had planned to be his career
* he was young, frightened, and had three non-Black Soldiers ready to falsely witness against him
* at the time of the incident he was threatened with jail time if he did not resign
* the discharge has been a negative hardship in his life
* the company clerk was the only one in uniform and he and the aggressor were both in civilian clothing
* this incident also destroyed his relationship with his pregnant fiancée who was a Korean national
* he was not able to locate her after his immediate departure from Korea

3.  In an undated letter, the applicant further states:

	a.  He joined the military right after high school in hopes of joining the battle in Vietnam, but shortly after he began his training he found out troops would no longer be sent to Vietnam.  He was issued orders to Korea.  He received two promotions and he was on the list to be promoted to the rank/grade of specialist five (SP5)/E-5.

	b.  Shortly after his reenlistment he received a pass and he was attempting to ready himself to leave the compound to join his fiancée who was waiting outside of the gate for him.  He got permission from the duty clerk to use the phone to call a cab.  While he attempted to make the phone call, two Soldiers who smelled of alcohol entered the orderly room and told him to hang up the phone.  He told them to give him a minute as he was just calling a cab.  One Soldier tried to pull the phone from his hand, so he let go of the phone and the Soldier fell backwards onto the floor.  The Soldier jumped up and they began to fight.  He received a blow to his eye that was so hard it knocked him backwards onto the floor.  The Soldier picked up a typewriter and held it over his head as if he was going to drop it on him.  He grabbed the company flag staff and lunged it at the Soldier, striking him on his forearm with the tip of the flag staff.  He was then placed into custody.

	c.  His defense counsel told him that three individuals gave completely different statements and it appeared he went after the Soldier with the company flag staff.  Counsel indicated it would not be in his favor to go in front of a court-martial because he would face time in prison.  He was told if he resigned he would only receive a general discharge.

4.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 29 January 1975
* Two 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 was born on 1 October 1952.  He enlisted in the Regular Army on 22 August 1972 for a period of 3 years at the age of 19 years, 10 months, and 22 days.  He completed his training and he was awarded military occupational specialty 64C (motor transport operator).  He arrived in Korea on 2 May 1974.  He attained the rank/grade of specialist four (SP4)/E-4 on 1 September 1974.  On 29 January 1975, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 30 January 1975 for a period of 3 years.

3.  On 19 March 1975, charges were preferred against him for:

* assaulting a sergeant by stabbing him in the arm with a dangerous weapon (the company Guideon staff)
* using provoking words toward a SP4
* using disrespectful language toward a SGT
* failing to obey two lawful orders

4.  Trial by special court-martial was recommended.

5.  On 12 May 1975, after consulting with counsel, the applicant submitted a request for 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.  In his request he indicated he understood he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

	a.  He requested to be discharged from the Army because he was attacked by a man who was beating him with his fists while his friend stood at the door with a stick in his hand to prevent him from leaving the room.  He picked up the stick to defend himself and his assailant ran towards him into the end of the stick and was cut on his arm.

	b.  If he goes to trial he would be facing over 5 years confinement at hard labor plus a possible dishonorable discharge, all because he was defending himself.  He was in fear of receiving serious bodily harm.

	c.  He would like to stay in the Army, but the alternatives he faced forced him to submit this resignation.  The man who attacked him later approached him and apologized, saying that he was in the wrong and that he didn't want to press charges against him.

	d.  He had been in the Army for 3 years and he never received an Article 15 or any court-martial conviction until he came to Korea where he received an Article 15 for failing to repair (first enlistment).  He also pointed out that the Article 32 investigating officer recommended that some of the charges pending against him be dropped and recommended that the charges be referred to a special court-martial empowered to adjudge a bad conduct discharge.

6.  His unit commander stated:

* the applicant had been on the Provost Marshal blotter report for assault upon a taxi driver and for destroying personal property of a Korean National, and that both charges were settled out of court
* while pending court-martial charges, he absented himself from this place of duty several times without permission
* following his request for discharge under chapter 10, he was absent without leave

7.  On 27 May 1975, the separation authority, a major general, approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  On 14 June 1975, he departed Korea en route to the U.S. Army Transfer Point, Oakland, CA for separation processing.

9.  On 16 June 1975, 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 undesirable discharge.  He completed 4 months and 17 days of net active service this period for 2 years, 9 months, and 25 days of total active service.

10.  In June 1976, the Army Discharge Review Board denied his request for a discharge upgrade.

11.  He submitted two character reference letters from a deacon (church) and representative from the United Brotherhood of Carpenters and Joiners of America who attest:

* the applicant is a God-fearing man, husband, and father
* he is a great asset to the community who speaks constantly to the youth about joining the military as an option to being out in the streets of the troubled city
* he is hard working and gainfully employed
* he has been a member of the Carpenter's Union, Local 17, Toronto, Ontario from October 2007 to February 2011

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

	a.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the service.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young and frightened.  However, age is not a sufficiently mitigating factor.  He was almost 20 years old when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, he completed over 2 years and 
5 months of service prior to his misconduct.

2.  The evidence of record does not support his contention he was told he would only receive a general discharge if he resigned.  Evidence shows on 12 May 1975, he consulted with counsel and in his request for discharge he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate.

3.  The character reference letters submitted on behalf of the applicant were considered.  However, they failed to show the applicant's discharge was inequitable or unjust that would have warranted an upgrade.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  His record of service during his last enlistment included serious offenses for which trial by special court-martial was recommended.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, the applicant's record of service is insufficiently meritorious to warrant a discharge upgrade.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20120021329



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ABCMR Record of Proceedings (cont)                                         AR20120021329



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