IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130011249 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to no less than general, under honorable conditions.

2.  The applicant states he was coerced into accepting a UOTHC discharge because he was made to believe if he did not accept it he would be incarcerated for a crime he did not do.  He only had one other incident during his military service.  He failed to return to the barracks on time after a weekend pass.  That incident was used to convince him that his second incident would result in confinement.  He was 19 years of age and afraid of facing imprisonment, especially for a crime he did not commit.  He did not know the ramifications a UOTHC discharge would impose on his life.  He experienced racial discrimination because he was in training for a military occupational specialty that was dominated by white males.  He also states that while in basic training he experienced tremendous pain in his groin.  He was admitted to the hospital for surgery.  There is some discrepancy about just what hospital did the surgery.  Also, while home on leave he went to another hospital to have his groin pain checked.  He overheard two doctors talking about how his surgery was fouled up.  After 36 years, he still experiences problems in his groin.  He has been told it may take up to eight surgeries to correct his condition and eliminate the swelling and pain.

3.  The applicant provides copies of:

* Certificate of Training, Aerospace Education One and Two courses, dated 26 January 1976
* Standard Form 513 (Clinical Record) dated 10 March 1977
* DA Form 4187 (Personnel Action) dated 16 May 1977
* Fort Gordon Signal School (FGSIGS) Form 890 (Faculty Board Action), dated 20 May 1977
* Orders 105-69, U.S. Army Signal Center and Fort Gordon, GA, dated 
31 May 1977
* DA Form 4187, dated 19 July 1977
* DA Form 4187, dated 21 July 1977
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
26 July 1977
* Standard Form 513, dated 24 August 1977
* Letter, Request for Discharge for the Good of the Service, dated 
9 November 1977, with four endorsements
* DA Form 2496 (Disposition Form), Request/Decline Narrative Reason for Separation, dated 29 November 1977
* DD Form 214 (Report of Separation from Active Duty), effective              29 November 1977
* DA Form 2-1 (Personnel Qualification Record - Part II), pages one and three

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.  On 27 January 1977, the applicant enlisted in the Regular Army.  He was subsequently ordered to Fort Gordon, GA for initial training.

3.  On or about 23 March 1977, the applicant completed basic combating training and was assigned for training in military occupational specialty (MOS) 36G (Manual Central Office Repairer).

4.  On 20 May 1977, the applicant was assigned in MOS 57A (Duty Soldier).

5.  On 2 June 1977, the applicant was assigned for training in MOS 05F (Radio Teletype Operator Non-Morse).  The available records do not state whether he graduated from this course.

6.  On 26 July 1977, the applicant accepted NJP for being absent without authority from his unit for a period of about 2 days.

7.  On 26 August 1977, at a mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right and capable of participating in the separation processing.

8.  On 13 September 1977, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for:

	a.  charge I: violation of Article 121 (Larceny) by stealing an International Scout motor vehicle, the property of the United States, valued in excess of $1,000.00;

	b.  charge II: violation of Article 108 (Damage to military property) through neglect, damaged an International Scout motor vehicle by driving it without sufficient oil in its engine, valued in excess of $1,000.00.

9.  On 9 November 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

10.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.
11.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  On 18 November 1977, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (UOTHC Discharge Certificate).  On 29 November 1977, the applicant was discharged accordingly.  He had completed 10 months and 1 day of creditable active military service and accrued 2 days of time lost due to AWOL.

13.  On 3 October 1978, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC is normally considered appropriate.

	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 (emphasis added), 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.

15.  Under the UCMJ, the maximum punishment allowed for violation of Article 108 for damaging military property valued in excess of $500.00 is a punitive discharge and 10 years confinement.  The same maximum punishment applies for violation of Article 121 for stealing military property valued at more than $500.00.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to no less than general, under honorable conditions because he was 19 years of age and afraid of facing imprisonment.  He also argues that he was racially discriminated against and received incorrect medical treatment.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  There is no documentary evidence that convincingly shows the applicant was discriminated against, or was given improper medical treatment.  Furthermore, there is no evidence showing that either of these possibilities had any influence on his committing larceny by stealing a government-owned vehicle.

4.  There is no evidence of error or injustice in this case.

5.  In view of the above, 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 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)                                         AR20130011249





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ABCMR Record of Proceedings (cont)                                         AR20130011249



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