IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140008779 


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 under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states:

   a.  He is not requesting any benefits, just restoration of his honor and integrity.  He was pressured and coerced into signing the chapter 14 under threat of a court-martial.  No legal aid was forth coming.  He was discharged 10 weeks before his enlistment expired.  In effect, he believes his discharge should be upgraded to reinforce the integrity of the U.S. Army military justice system.

   b.  He was assigned to the 2nd Battalion, 33rd Field Artillery in Neu Ulm, Germany, from June 1978 to November 1980.  At the time he was 17 years of age with a general educational development.  He served as a land surveyor in military occupational specialty (MOS) 82C (field artillery surveyor).  The survey section was about evenly ranked as the others were in the Headquarters Battery. Over the next few months all of the privates (PVT) were discharged due to their expiration of term of service or were transferred to different sections.  As the only PVT remaining, he was overly supervised which became a very distressing work environment.

   c.  A sergeant (SGT) would dispatch him to some duty and while carrying that out, another would then task him to do another, then the first SGT would come back and accuse him of disobeying an order.  Almost every day he was dispatched from the section for details like the mess hall, pouring concrete, and placing fiber glass in the roofs of buildings, etc.  He hardly ever served in his MOS because all of the SGTs were assigned the instrument and calculating duties.  If he did contribute, it was pulling tape or driving.  He became depressed and tried to transfer to another section to no avail.

   d.  He had a German girlfriend, whom he stayed with sometimes off-post, catching the train to work in the morning.  One morning he missed the train.  He called the charge of quarters informing him that he would be late.  This incident was used with other incidents to chapter him out with 10 weeks remaining for an honorable discharge.  

   e.  In November 1980, he sought legal advice and representation; however, being on foreign soil, his only resource was the Judge Advocate General's (JAG) office.  The JAG he consulted with was unhelpful to the point of being obstructive.  His attitude was that he didn't give a d_ _ n and hated his job.  He was told to sign the chapter or face a court-martial.  As a young and naïve 20-year old, the prospect of more trouble from a military court coerced him toward their agenda.  

   f.  After 34 months of hard work, what he was earning, an honorable discharge, was snatched away.  For a 20-year old with a life ahead of him, this was betrayal and traumatic.  This would not be the last or worst betrayal in his life, there was another.  However, in the U.S. there are numerous avenues of recourse for injustice.  He should not have been discharged in that regard.  It is blatant exploitation and poor discretion.  With only 10 weeks to go he could have been placed on extra duty, restriction, etc.  There were many options available to the command.  As per the Veterans Advocate officer, a commander is not obligated to initiate discharge.  Some commands will overlook conduct that others use as a basis for discharge.  His command opted to the administrative procedure of a misconduct separation to deprive him of judicial protections available in a court-martial. 

   g.  He is requesting the Board consider the minor infraction, time served, and the witch-hunt atmosphere perpetrated upon him and upgrade his discharge to a general discharge.  His request should also be reviewed based on a recent injustice he has endured and he was compensated for.  After his military service he worked as a communications operator for the Federal government at Mather Air Force Base in California.  The base was closed in 1991.  Since then he has worked in the transportation profession as a taxi driver in Seattle, WA; San Francisco, CA; and New York.  For several years he drove an 80,000 pound big rig over 43 states.  With over a million miles on record he had no tickets and no accidents.

   h.  In 2007, after being on the road for over 2 years, he took time off and restored his late father's Plymouth Fury II.  He had to resign and was welcomed back when he was ready.  In 2008, the recession hit and a lot of companies were not taking people back.  He applied at several trucking companies around the country to no avail.  After a year had passed without driving a person's skills are considered obsolete by the trucking industry and the chance for being hired are slim.  

   i.  In 2010, he researched the internet to learn if there was anything about him out there that was damaging his character.  He discovered the DAC report, which nationwide trucking companies use as a data base for drivers.  It is similar to a credit report and 1 free copy per year can be requested.  His review of his report confirmed his intuition.  The report stated that he was fired from his last job, not resigned.  He corrected this information with the information technology company Unisys.  A month later he received a letter from an attorney in Oregon who asked if he would like to join in on a class-action lawsuit.  He did so and several hundred drivers were compensated for errors in reports that barred them from employment.

   j.  Since then, he had developed scoliosis, degenerating discs, and neurological disorders for which he is receiving social security benefits.  He now has the time to research what happened when he was 17 years of age in the Army in Germany.  A review of his case would bring closure of a burden he has borne for 33 years.  For the Army it would exhibit that although mission first, there is a "people always" sentiment.  This gives citizens a brighter and more supportive impression of the great institution of our Armed Forces.  The last few years have been rough with incidents of disparagable character for the U.S. military.  He requests the opportunity to show the public that this entity is not a machine, but of people, human beings, with minds and hearts for justice.

3.  The applicant provides copies of the following:

* DA Form 2-1 (Personnel Qualification Record – Part II) (unreadable)
* DD Form 4 (Enlistment/Reenlistment – Armed Forces of the United States)
* two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from the National Personnel Records Center (NPRC)
* Empirical Investigation of First Term Attrition article




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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 24 January 1978, for 6 years.  At the time of his enlistment, he was 17 years, 3 months, and 17 days of age.  He was awarded MOS 82C.    

3.  On 28 February 1978, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for breaking restriction.

4.  He arrived in Germany on 25 May 1978.  He was advanced to pay grade 
E-3 on 1 December 1978.

5.  He accepted NJP under Article 15, UCMJ, on/for:

   a.  12 April 1979 - operating a passenger vehicle while drunk and wrongfully having in his possession an undetermined amount of marijuana on 7 April 1979.  His punishment included a suspended reduction to pay grade E-2 and 30 days of correctional custody.  His appeal was denied on 9 March 1979.

   b.  22 June 1979 - failing to go to his appointed place of duty on 20 June 1979.  His punishment included a reduction to pay grade E-2 and 7 days of correction custody (suspended until 24 August 1970, to be automatically remitted if not vacated before 24 August 1979).  He did not appeal the punishment.  It appears the suspension was vacated.

6.  He was again advanced to pay grade E-3 on 1 October 1979.

7.  He accepted NJP under Article 15, UCMJ, on/for:

   a.  3 March 1980 - wrongfully having in his possession an undetermined amount of marijuana on 9 January 1980.  His punishment included a forfeiture of $270.00 pay (suspended until 2 September 1980, to be automatically remitted if not vacated before 2 September 1980).  He did not appeal the punishment.

   b.  16 June 1980 - behaving himself with disrespect toward his superior commissioned officer and willfully disobeying a lawful order on 7 June 1980 and willfully destroying military property on 13 June 1980.  His punishment included a suspended reduction to pay grade E-1, a forfeiture of $224.00 pay per month for 2 months, and 30 days of correctional custody.  His appeal was denied on 27 June 1980.

   c.  19 September 1980 - failing to go to his appointed place of duty on three occasions on 17 September 1980.  His punishment included 14 days of extra duty and restriction.  He did not appeal the punishment.

8.  On 19 September 1980, the applicant’s company commander initiated action to discharge the applicant for incidents of a discreditable nature under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-33(b)1.  He stated the applicant was assigned to Headquarters and Headquarters Battery and he was an 82C.  He had been a below average private at best.  He had received numerous counseling statements and 3 company grade Article 15s and 3 field grade Article 15s while assigned to that unit.  He had never displayed any consistent initiative toward self-improvement.  Due to the number of offenses and his continued misconduct, he recommended the applicant be separated in accordance with Army Regulation 635-200, chapter 14.  He advised the applicant of his rights.

9.  On 26 September 1980, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he could receive a general or an honorable discharge and the results of the receipt of an UOTHC discharge.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 1 October 1980, the applicant's battalion commander recommended the applicant's separation for misconduct.  He stated that based on repeated counseling, numerous Article 15s, and the fact that the applicant showed no response to rehabilitative attempts, he believed it was in the best interest of the applicant and the U.S. Army that he be discharged.

11.  On 17 October 1980, the separation authority approved the applicant's discharge and directed the issuance of a UOTHC Discharge Certificate.

12.  He was discharged accordingly in pay grade E-1 on 13 November 1980.  He was credited with completing 2 years, 9 months, and 20 days of active service.
13.  On 20 March 1998, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  He provided copies of the following:

* letter, dated 29 April 2014, wherein the NPRC provided him a copy of his official military personnel file
* Empirical Investigation of First Term Attrition article which reported an attempt to identify "high risk" attrition factors in first term enlistees

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-33b - members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for misconduct.  A UOTHC discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows the applicant exhibited a pattern of misconduct as evidenced by his acceptance of 6 Article 15s for several military infractions of discipline and twice possessing marijuana.  He accepted his first Article 15 before he ever arrived in Germany.  His company commander initiated action to separate him for misconduct when it was clearly established that rehabilitation was unlikely to succeed.  After counseling with counsel, he acknowledged the proposed separation action and that he could receive a UOTHC discharge.  He was discharged accordingly on 13 November 1980.

2.  His contention that he was young and naïve was carefully considered.  He was 17 years, 3 months, and 17 days of age at the time of his enlistment.  He was over 18 and 19 years of age when his frequent incidents of a discreditable nature with authorities began.  There is no evidence he was any less mature than any other Soldier who successfully completed their period of enlistment.

3.  He provided no sufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

4.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20140008779





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ABCMR Record of Proceedings (cont)                                         AR20140008779



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