BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130017411 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states he was young and full of enthusiasm when he entered military service.  He was doing fine in training as a helicopter mechanic, but he was transferred out of the unit.  The reason he was given was that he had been absent.  He states that he called in to his unit when he was absent, but there is no record of it in his military records.

   a.  He states he was a good Soldier and the best mechanic in the motor pool.  He had serious problems with his chain of command because they showed prejudice toward blacks.  He adds that the company had their own standards.

   b.  He was charged with telling a noncommissioned (NCO) that he would take his money and stripes.  He asserts that someone else actually made the remark. However, he was implicated in the matter and charged with the offense simply because he was in the area.  He adds that he would never have spoken to an NCO in that manner, particularly to the NCO in question because he was much bigger than the applicant.

   c.  He denies disobeying a lawful order from a military policeman when told to stand up against a car.  At the time he was returning to his barracks, three guys who had left a bar followed him, and they were harassing him.  He adds he might have gotten loud during the incident, but that was all. 

   d.  He concludes by stating that, after all these years all he has is his word; he has no physical evidence to support his application.

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

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 29 January 1976, the applicant enlisted in the Regular Army for a period of 3 years.  At that time he was 17 years of age.

3.  He accepted nonjudicial punishment (NJP) on two occasions for being absent from his place of duty on:

* 14 July 1976
* 19 and 20 July 1976

4.  On 20 July 1976, he was administratively eliminated from the OH-58 Helicopter Repairman course for misconduct and assigned to Fort Dix, NJ.

5.  Upon completion of training he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).

6.  On 2 June 1977, he accepted NJP for engaging in a fight with an NCO, communicating a threat to him, and disobeying a lawful order from another NCO.

7.  On 22 December 1977, court-martial charges were preferred against the applicant for:

* failing to be at his appointed place of duty (four specifications)
* disobeying a lawful command from a commissioned officer
* disobeying a lawful order from an NCO and being disrespectful in language toward an NCO
* operating a vehicle on a Federal installation in a reckless manner
while drunk
* breaking restriction

8.  On 24 January 1978, the applicant consulted with legal counsel.  He was informed of the charges against him for violations of the Uniform Code of Military Justice (UCMJ) and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be discharged under conditions other than honorable, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were given a undesirable discharge (under other than honorable conditions).

	c.  He was also advised that he could submit any statements he desired in his own behalf.

	d.  The applicant and his counsel placed their signatures on the document.

	e.  The applicant submitted a statement in his own behalf wherein he stated that he was 19 years old.  He stated that he grew up in a family of six, his parents were divorced, he completed the ninth grade of high school, and he entered the Job Corps where he earned his General Education Diploma.  He then entered the Army.  His main interest was mechanics.  He offered, "For the most part, I like the Army.  I do feel my entire chain of command has a grudge against me and have treated me unfairly."

9.  The separation authority approved the applicant's request for discharge and directed characterization of his service as under other than honorable conditions.


10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows, on 23 February 1978, he was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), 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.

	a.  He completed 1 year, 11 months, and 26 days of net active service during this period.

	b.  Item 21 (Dates of Time Lost During This Period) shows he had 29 days of lost time.

11.  On 17 August 1978, the applicant submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 16 April 1980, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request for an upgrade of his discharge was denied.

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

	a.  Chapter 10 provides 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.  Chapter 3, 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.  Chapter 3, 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 that his under other than honorable conditions discharge should be upgraded to general discharge because he was young and immature; but he was a good Soldier, his chain of command was prejudiced against him because he was black, and he was falsely charged with offenses that he did not commit.

2.  The evidence of record shows the applicant accepted NJP on three occasions.  It also shows he was charged with five violations of the UCMJ, two of which contained multiple specifications.  In addition, he voluntarily submitted a request for discharge in lieu of being court-martialed.  Thus, the applicant's contentions that he was falsely charged with offenses that he did not commit is not supported by the evidence of record.

3.  There is no evidence of record and, other than his contention in his application to this Board, the applicant provides no evidence to support the serious allegations of discrimination, prejudice, and/or unfair treatment against him by Army officers and/or NCOs.

4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

5.  During the period of service under review, the applicant received NJP on at least three occasions, he had 29 days of time lost, and he completed less than 
2 years of his 3-year enlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.


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)                                         AR20130017411



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ABCMR Record of Proceedings (cont)                                         AR20130017411



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