IN THE CASE OF:  	  

		BOARD DATE:  4 December 2014	  

		DOCKET NUMBER:  AR20140005244 


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 his previous request for an upgrade of his general discharge to an honorable discharge. 

2.  The applicant states:

   a.  He believes the decision the Army Board for Correction of Military Records (ABCMR) was without prejudice and based upon the limited information he had provided.  The decision hinges on two essential points: First, the overall record of indiscipline that existed did not support an upgrade of his discharge from general to honorable.  Second, his subsequent request for discharge was made without coercion or duress.  He believes the following argument will refute these two points and shed light on the existence of an injustice to which the Board is bound by regulation to remedy.

   b.  From January 1971 to June 1973, his period of military service was unremarkable.  At that time he was promoted to pay grade E-4 and attended the noncommissioned officer (NCO) basic leadership course.  The two instances of nonjudicial punishment (NJP) occurred 13 months apart.  Returning Vietnam veterans from his unit had received similar NJPs and were still given honorable discharges.  To suggest that this period of service was considered anything but honorable supposes that somehow combat service waives the standards of acceptable conduct for an honorable discharge.  If anything this level of conduct may warrant the denial of the Army Good Conduct Medal, but would not constitute grounds for anything but an honorable discharge.

   c.  On 12 July 1973, he became eligible for Project Transition, a program which allowed Soldiers with 6 months remaining to participate in employment training which would result in their having a useful occupation upon separation.  His commander informed him that this was for "good Soldiers" and that he would not be allowed to participate.  Instead, he and others (non-Vietnam veterans) who had received NJPs were given a disproportionate share of extra duty (guard duty, barracks watch, and removal from the honor detail) as an "attitude adjustment."  Complaints to the division artillery equal employment opportunity officer were dismissed as the commander's prerogative.

   d.  In October 1973, he was informed court-martial charges had been preferred against him for possession of marijuana.  In an effort to spare his family the shame and embarrassment of a court-martial he requested and was denied his request for a discharge for the good of the service.  Instead his commanding officer stated, "I got you now" and he was remanded to the stockade for pre-trial confinement.  He was visited twice by his commanding officer in the three and half weeks of confinement.

   e.  On the first visit he was informed that due to procedural error court-martial charges would not be pursued.  On the second visit he was offered a separation for the good of the service and it was made quite clear that if he declined to accept this offer his last 4 months of service would be "memorable" if you get his meaning.  He spent the remainder of his service confined to the barracks area quartered away from the "good Soldiers."  Off-duty privileges were suspended and his whereabouts were to be known by the duty NCO until his separation orders were issued.

   f.  From 22 October 1973 through 25 June 1974, he spent the 8 months following his separation in the company of his parents.  His father, a retired naval officer, persuaded him to aggressively pursue the denial of his original request for a discharge upgrade which was denied by the Army Discharge Review Board (ADRB) on 25 June 1974. 

   g.  He faithfully served his country with honor for two and half years.  The quality of his service up to that point had generally met the standards of acceptable conduct and performance of duty for Army personnel as defined by Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-7.  It is the pattern of behavior and not the isolated incident that should be considered the determining factor in determination of character of service.
   
   
   
   h.  Labeling two incidents which occurred during 2 years and 6 months of faithful service a record of indiscipline is unwarranted and presumptuous.  It suggests a continual and deliberate state of resistance to any authority without restraint.  He had demonstrated that coercion and duress were tools that his commanding officer used maliciously and with a specific intent to punish him outside the purview of the Uniform Code of Military Justice (UCMJ).  He had been the focus of his commanding officer's negative attention for the previous 5 months, had been denied the Project Transition program, and was denied leave for fear he wouldn't return.

     i.  When informed that charges could not be preferred against him and that a good of the service discharge was his to request, his only thought was relief from this painful situation.  He had no idea of the implication this decision would have on his future.  These were not high crimes and misdemeanors; they were poor decisions made by an immature young man.

   j.  In May 1977, the ABCMR reversed the decision of the ADRB and voted to upgrade the same discharge without any submitted evidence.  Its discussion and conclusions in its 2013 deliberation therefore have been rendered moot by its 1977 decision.  He can only conclude that the Board is applying a standard outside the purview of Army regulations to uphold its decision of March 2013.  It is requested that his 40-year sanction on honor and integrity be corrected in the interest of justice.  Justice has been more than satisfied in this case and the Board's denial cannot possibly serve any other useful purpose.

3.  The applicant provides no additional evidence.

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 ABCMR in Docket Number AR20120016521 on 19 March 2013.

2.  The applicant provides new argument and will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 13 January 1971.  He was awarded military occupational specialty 13A (field artillery basic).  He was promoted to pay grade E-4 on 15 December 1971.  He served in Hawaii from 5 June 1971 through 22 October 1973.

4.  He accepted NJP under Article 15, UCMJ, on:

* 18 April 1972 – for being disrespectful in language toward his superior NCO
* 8 May 1973 – for disobeying lawful orders from his superior commissioned officer and superior NCO

5.  On 24 July 1973, a DD Form 458 (Charge Sheet) was completed by the Commander, B Battery, 3rd Battalion, 13th Field Artillery, 25th Infantry Division.  The applicant was charged with one specification of wrongfully having in his possession 62.8 grams of marijuana on or about 18 July 1973.

6.  On 17 August 1973, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge (UD) Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 4 and 5 October 1973, the applicant's chain of command recommended approval of the applicant's request and recommended the issuance of a UD.

8.  On 10 October 1973, the separation authority approved the applicant’s request and directed the issuance of a UD and reduction to pay grade E-1.

9.  He was discharged accordingly on 22 October 1973.  He was credited with completing 2 years, 9 months, and 10 days of net active service.  He was issued a UD Certificate.

10.  On 25 June 1974, the ADRB denied his petition for an upgrade of his discharge.

11.  On 25 May 1977, in response to his request for an upgrade of his UD to a general discharge, the ABCMR concluded that the applicant's overall record of service did not appear so bad as to warrant the severity of a UD.  The ABCMR recommended his records be corrected to show he was separated with a general discharge on 22 October 1973 in lieu of the UD which was issued.

12.  On 6 October 1977, he was provided a DD Form 214 (Report of Separation from Active Duty) showing his character of service as under honorable conditions (general).

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:
   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  A UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contentions were carefully considered and found not to have merit.

2.  Notwithstanding his record of indiscipline and taking into account his overall record of service with no time lost the ABCMR previously concluded his UD was too severe and he was granted an upgrade to a general discharge.  This was done as a matter of equity; not because there was an error or injustice.

3.  Given the offense (this third offense) and absent any mitigating factors, his service was not so meritorious that any further upgrade would be appropriate.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He did not refute the charge and he voluntarily requested to be discharged in lieu of court-martial.

4.  He provided no evidence or a convincing argument to show his discharge should be further upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.  Possession of any amount of any controlled substance cannot be condoned by the Army and is unacceptable conduct for Army personnel.  Therefore, his conduct rendered him triable by court-martial and diminished the quality of his service below that meriting a fully honorable discharge.

5.  In view of the foregoing, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20120016521, dated 19 March 2013.



      ___________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)                                         AR20140005244





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ABCMR Record of Proceedings (cont)                                         AR20140005244



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