IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140003707 


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 discharge under other than honorable conditions.

2.  The applicant states, in effect, that he was a very good Soldier and looked at the Army as his career.  He scored high on his Skills Qualification Test (SQT) and was the top Soldier in his military occupational specialty (MOS), he was recommended for promotion to the rank/grade of sergeant (SGT)/E-5, and he was awarded the Army Good Conduct Medal.  He signed up for as many courses as he was offered, to include going to Berlin twice for intercity combat training.  He was on the colonel's tank and went to many international festivals to show their force.  His relationships with people of the world were very professional and their response was positive.  He has always held himself with the high standard and respect for the United States Army.  He was like by his subordinates and some of his superiors.  Their tank and crew were top-notch and top gun downrange on maneuvers.  "Courage conquers" was the motto by which they lived.

3.  The applicant further states that he knew his job well and taking the SQT was easy for him because the answers flowed out of him with pride.  A few days after taking the test, he was called into the first sergeant's (1SG) office where the captain, three first lieutenants, his platoon sergeant (PSG), and two other PSGs were standing.  The 1SG informed him that he had scored higher than everyone in their MOS except for the battalion commander.  At first one of the lieutenants accused him of cheating, but the 1SG stood up for him because it was impossible to cheat on that test.  He was the hero and they all shook his hand and said that he was going up for SGT/E-5.

4.  As a result, he was treated very well and his men organized a celebration for him off post.  When he arrived at the celebration it was a good time with drink, song, women and laughter.  He attests that he was in the wrong place at the wrong time when the German police showed up at the celebration and found hash, marijuana, and LSD (lysergic acid diethylamide).  Since he was the senior ranking person there, he was blamed.

5.  His chain of command offered him the choice between requesting a discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) and go home or appearing before a court-martial and going to prison.  He attests that he could not fight the wrong because he was young and just wanted to go back to the United States.  He has been ashamed of what happened and felt bad for many years.  However, he recently saw a television program on the military channel which said that the Army handed out less than honorable discharges in the 1970s and it was illegal.  He believes that this is what happened to him and now he has hope that his discharge can be upgraded.

6.  The applicant provides what appears to be a copy of numerous documents from his Official Military Personnel File to include:

* DD Form 764A (Discharge Under Other Than Honorable Conditions Certificate)
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 2496 (Disposition Form), Subject:  Port Call Instructions - Separatees
* a partial DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* 3 Certificates of Training
* a diploma
* a Letter of Explanation
* a Letter of Commendation and accompanying endorsement
* DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty)
* numerous reassignment orders
* Leave and Earnings Statement for the month of June 1975
* a letter from an adjudication officer representing the Regional Office, Veterans Administration (VA), San Francisco, CA

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 21 July 1956 and he enlisted in the Regular Army on 24 April 1975 at the age of 18 years, 9 months, and 4 days.  Upon completion of initial entry training the applicant was assigned for duty with the 1st Armored Division in Germany where he served for the duration of his period of enlistment.
The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.  However, at the time of his discharge he held the rank/grade of private (PV1)/E-1.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for:

* departing his unit in an absent without leave (AWOL) status from 11 October to 10 November 1975
* willfully disobeying a lawful order from a superior noncommissioned officer on 26 June 1976

4.  His record contains a USAEREC Form 10A (Enlisted Evaluation Data Report), dated 28 June 1978, which shows he achieved a score of 95 percent on his SQT and as a result, he scored higher than 99 percent of Soldiers in his MOS and pay grade.

5.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, on 21 September 1978, following counseling, the applicant submitted a voluntary written 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 stated that he had consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.  He indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of an undesirable discharge.  He further acknowledged his understanding that, if his request for discharge was accepted, he could be discharged under other that honorable conditions and furnished an Other Than Honorable Discharge Certificate.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant declined his right to submit a statement in his own behalf.

6.  177th Personnel Service Company, Orders 244-6, dated 5 October 1978, show the applicant was reassigned to United States Army Transfer Station, Fort Dix, NJ, for separation processing with a reporting date of 10 October 1978.  These orders also stated that he would be furnished an Under Other Than Honorable Discharge Certificate.

7.  On 10 October 1978, the applicant was discharged accordingly.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  The applicant provides, in part:

	a.  3 Certificates of Training which show he successfully completed the following:

		(1)  Advanced Individual Training Course;

		(2)  M60A2 Tank Crewman Course; and

		(3)  14-Hour Race Relations Education Seminar.

	b.  a diploma which certifies that he graduated from the CA 18A, M60A2 Transition Course.

	c.  a Letter of Explanation rendered by Commander, 2d Armored Cavalry Regiment on 15 December 1975, wherein he informed the applicant that he regretted that he was one of the 300 men who was selected to be reassigned from this regiment in response to a directed reduction of the unit's overstrength status.

	d.  a Letter of Commendation rendered by a noncommissioned officer Master Gunner on 26 August 1977, wherein he commended the applicant for his selection as one of the elite crew members of the Battalion Commander's tank.  He also provided the accompanying endorsement rendered by a commissioned officer who expressed his appreciation for the devotion to duty and professionalism the applicant displayed throughout the recent Tank Gunnery Program.

	e.  a letter from an adjudication officer representing the Regional Office, VA, San Francisco, CA, informing the applicant that his discharge from military service on 10 October 1978 was found to have been issued under conditions which constitute a bar to payment of VA benefits.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 in lieu of trial by court-martial 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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally given to an individual who was discharged for the good of the service.

	a.  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.

	b.  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's contention that his discharge should be upgraded was carefully considered.

2.  The fact that he excelled in his MOS is acknowledged.  However, his record is void of any evidence and he has not provided any evidence in support of his claim that his discharge was illegal.

3.  Although the complete facts and circumstances of the applicant's discharge are unknown he states the catalyst for the action was the fact that German police raided an event that he was attending and discovered the presence of hashish, marijuana, and LSD.  He further states that since he was the ranking Soldier present, the blame was placed upon him.

4.  The evidence of record indicates he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no 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 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)                                         AR20140003707





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ABCMR Record of Proceedings (cont)                                         AR20140003707



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