IN THE CASE OF:  	  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140001195 


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 an upgrade of his undesirable discharge.

2.  The applicant states:

	a.  He entered the service at age 17.  While growing up he never had the chance to really choose what he wanted to be.  He didn't have a father around to show him the way.  His mother had eight kids and he decided to join the Army to help her.

	b.  After a couple of months of duty in Germany, his efforts to adjust were a daily struggle for him.  His supervisor never showed any concern for him as a young man who was in need of guidance and help in his development as a person or Soldier.  His supervisor's attitude toward black persons was negative and derogatory.  His supervisor was not fair in his dealings with him and his situation.

	c.  In April 1976, he was accused of assaulting a man he had never seen.  He fell asleep during a cab ride and he woke up being beaten by a cab driver.  Other Soldiers got involved and after a while the police showed up and began arresting everyone.

	d.  He was never asked to make a statement explaining what had happened after his arrest.  He was ill-advised by counsel that if he requested discharge under chapter 10, he could have his discharge upgraded in 2 years.  His counsel was ineffective.  He was tried and convicted of a crime he did not commit.

	e.  He served his country in good faith.

3.  The applicant provides:

* DD Form 458 (Charge Sheet)
* 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 was born on 15 May 1956.  He enlisted in the Regular Army for a period of 3 years on 3 December 1973 at 17 years of age.  He completed his training and was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  In August 1974, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 17 August 1974 to 18 August 1974.

4.  He arrived in Germany on 27 October 1974.

5.  Between December 1974 and February 1976, NJP was imposed against him on five occasions for:

* failing to repair
* being disrespectful toward a sergeant first class (two specifications)
* being AWOL for approximately 11 hours
* failing to repair (two specifications)
* breaking restriction

6.  On 4 May 1976, the following charges were preferred against him:

* assaulting an individual
* disobeying lawful orders (two specifications)
* being absent from his place of duty (seven specifications)
* disobeying lawful commands (two specifications)

7.  Trial by special court-martial was recommended.

8.  On 17 May 1976, after consulting with counsel, he 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 – Enlisted Personnel), chapter 10.  He indicated he understood he could be discharged under other than honorable conditions and be 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 not to submit a statement in his own behalf.

9.  On 24 May 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

10.  He departed Germany on 30 May 1976.

11.  On 15 June 1976, he 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, and issued an Undesirable Discharge Certificate.  He completed 2 years, 6 months, and 13 days of total active service.

12.  In July 1980, the Army Discharge Review Board denied his request for an honorable discharge.

13.  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.

14.  The U.S. Army has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statement that he entered the Army at age 17 was noted; however, age alone is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he successfully completed his training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

2.  He contends his supervisor's attitude toward black persons was negative and derogatory and he was not fair in his dealings with him and his situation.  However, there is no evidence of record, and he provided no evidence, that indicates he was a victim of racial discrimination.  Further, his misconduct started before he arrived in Germany.

3.  His contentions that his counsel was ineffective and he was convicted of a crime he did not commit relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial/appellate process.  However, he voluntarily requested discharge in lieu of trial by court-martial.

4.  He contends his counsel told him his discharge could be upgraded in 2 years; however, a discharge upgrade is not automatic.  Each case is decided on its own merits.
5.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  His record of service during his enlistment included imposition of six NJP's and numerous serious offenses for which special court-martial charges were preferred against him.  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.

8.  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)                                         AR20140001195



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ABCMR Record of Proceedings (cont)                                         AR20140001195



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