IN THE CASE OF:	  

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130007035 


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 reconsideration of an earlier request to upgrade his discharge to a general or honorable discharge.

2.  The applicant states he faced racial discrimination that impaired his ability to serve.  His commander abused his authority when he decided to discharge him and give him an under other than honorable conditions discharge.  His record of being absent without leave (AWOL) was minor and an isolated offense.  His punishment was too harsh.  It was much worse than most people got for the same offense.  His ability to serve was impaired by his immaturity and cruel treatment by his command.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110024922, on 8 May 2012.

2.  His statement provides new argument that warrants consideration by the Board.

3.  On 9 April 1979, he enlisted in the Regular Army at the age of 18.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 6 September 1979 for being AWOL from 19-30 August 1979
* 17 December 1979 for failing to go at the time prescribed to his appointed place of duty and communicating a threat to a noncommissioned officer (NCO)

5.  On 22 January 1980, court-martial charges were preferred against the applicant for:

* failing to go at the time prescribed to his appointed place of duty
* four specifications of being disrespectful in language toward an NCO
* failing to obey a lawful order from an NCO
* wrongfully having in his possession some amount of marijuana
* breaking restriction
* stealing an 8-track tape, of a value of about $5.95, the property of the Fort Ord Post Exchange

6.  On 22 January 1980, the applicant 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 trial by court-martial.  He acknowledged he understood the offenses he was charged with and he was:

* making the request of his own free will and without coercion
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Veterans Administration benefits

8.  On 7 February 1980, the applicant received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in 

Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

9.  On 5 February 1980, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the applicant be reduced to private (PV1)/E-1 and furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 15 February 1980, he was discharged under the provisions of Army Regulation 635-200, chapter 10.  He completed 9 months and 19 days of creditable active service with 18 days of time lost.

11.  The Table of Maximum Punishments, Manual for Courts-Martial, United States 1969 (Revised edition), in effect at the time, shows the maximum punishment for:
 
* failing to go to appointed place of duty was 1 month confinement and forfeiture of 2/3 pay per month for 1 month
* willfully disobeying an NCO was a bad conduct discharge (BCD), confinement for 6 months, and total forfeiture of pay and allowances
* disrespect toward an NCO was a BCD, confinement for 6 months, and total forfeiture of pay and allowances
* possession of marijuana was a dishonorable discharge (DD), 5 years confinement, and total forfeiture of pay and allowances
* breaking restriction was 1 month confinement and forfeiture of 2/3 pay per month for 1 month
* larceny of property of a value of $50 or less was a BCD, 6 months confinement, and total forfeiture of pay and allowances

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  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.  His age at the time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

2.  He contends he faced racial discrimination and cruel treatment by his command.  However, he has provided no substantive evidence to support his contention.

3.  He contends his punishment was too harsh and much worse than most people got for the same offense.  

	a.  The applicant's punishment was not too harsh for the offenses for which he was charged.  If he had been convicted by a court-martial he could have received up to 5 years confinement, total forfeiture of pay and allowances, and a DD.

	b.  He requested a discharge in lieu of court-martial and acknowledged he could receive an under other than honorable conditions discharge.  A discharge under other than honorable conditions was normally considered appropriate for individuals requesting a discharge in lieu of court-martial.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

6.  He accepted NJP on two occasions, for being AWOL for 18 days and for communicating a threat to an NCO.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Based on the seriousness of the offenses he was charged with, his service was clearly unsatisfactory.

7.  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110024922, dated 8 May 2012.

   
   

      _____________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)                                         AR20130007035



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ABCMR Record of Proceedings (cont)                                         AR20130007035



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