IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140013969 


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 discharge.

2.  The applicant states that he was in an Armored Personnel Carrier (APC) preparing to go on a weekend field training exercise (FTX).  The platoon sergeant gave him an order to surrender his utility (soft) cap.  He tried to explain to the noncommissioned officer (NCO) that the cap was part of the clothing items that were issued to him, he was responsible for it, and he would have to pay for it if it were lost or misplaced.

   a.  After waiting in the APC for about an hour, he went into his barracks and placed the soft cap in his locker.  He returned to the APC and the unit departed about an hour later.

   b.  The issue concerning his soft cap came up later when it was learned that he had loaned Sergeant (SGT) R____ money.  After waiting 3 days to be repaid, the applicant went to his commanding officer about the matter.

   c.  He received his money from SGT R____, but it came with a "backlash."  He did not know that SGT R____ and the platoon sergeant were friends.  He told SGT R____ that the matter wasn't anything personal and that he had plenty of time to repay him.

   d.  After returning to the unit after the FTX, he was called to the commander's office.  He passed SGT R____ in the hallway who said, "I warned you!"  He then learned that he had made a bad choice.  After being told by the commander not to leave the installation, he left anyway because he felt he had been "set up."

   e.  When he returned he was scared because he didn't want to go to prison,  He states, "I was offered a Chapter 13 [Unsatisfactory Performance] or a 
court-martial.  So I took the Chapter 13.  The last thing I wanted was a record.  I had to make a choice and that was the one I took."

   f.  He concludes by stating that he enjoyed being a Soldier and driver in the Army.  However, he requested and signed his discharge at counsel's request.  After being discharged he used his military training, established his own company, and drove trucks for 34 years.  However, he had to quit in 2010 due to health problems.

3.  The applicant provides a self-authored statement in support of his request.

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 enlisted in the Regular Army on 22 January 1976 for a period of 
3 years.  He was awarded military occupational specialty 11B (Infantryman).

3.  The applicant accepted nonjudicial punishment (NJP) on/for:

* 1 August 1976, absenting himself from his place of duty
* 18 August 1976 –

* being disrespectful in language (2 specifications)
* disobeying a lawful order (2 specifications)

* 22 August 1977, disobeying a lawful order from a superior NCO

4.  Headquarters, 2nd Brigade, 1st Infantry Division, Fort Riley, KS, Special Court-Martial Order Number 28, dated 22 November 1976, shows the applicant was found guilty of the following charges and specifications:

* being disrespectful in language toward a superior NCO (2 specifications)
* disobeying a lawful order from a commissioned officer
* wrongfully using provoking words and gestures toward an Acting NCO
   
5.  On 15 October 1976, the applicant was sentenced to be reduced to the grade of private (E-1), to be confined at hard labor for 4 months, and to forfeit $100.00 pay per month for a period of four months.

6.  On 22 November 1976, the Special Court-Martial Convening Authority (SCMCA) approved the sentence and ordered it duly executed.

7.  On 22 December 1976, the SCMCA suspended the approved sentence until 7 March 1977, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

8.  On 11 October 1977, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) –

* Article 92, for willfully disobeying a lawful order from a superior NCO
(i.e., to surrender his soft cap) on 20 September 1977
* Article 91, for being disrespectful in language toward a superior NCO
(2 specifications)
* Article 89, for behaving with disrespect toward a commissioned officer on 3 October 1977
* Article 117, for wrongfully using provoking words on 3 October 1977

9.  The applicant consulted with legal counsel.  He was informed of the charges against him for violating the 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.  By submitting his request for discharge he acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  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 deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and reduced to the pay grade of E-1.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit a statement.

   e.  The applicant placed his signature on the document.

10.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

11.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

12.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 27 October 1977 under the provisions of Army Regulation 635-200 (Personnel 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.  He had completed 1 year, 6 months, and 11 days of net active service during this period and he had 86 days of time lost.

13.  The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 14 February 1980, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.

14.  Army Regulation 635-200, in effect at the time, 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 his discharge should be upgraded because he was 
 "set up" and then made a bad choice, he submitted his request for discharge at his counsel's request, and he has been a responsible citizen since his discharge.

2.  The evidence of record shows the applicant was charged with violations of the UCMJ.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial, he acknowledged that he was guilty of the charges against him or of lesser included offenses therein contained (emphasis added), and he affirmed with his signature that he was not subjected to coercion with respect to his request for discharge.  Thus, the evidence of record refutes the applicant's contentions that he made a (i.e., one) bad choice and that he submitted his request for discharge based on his counsel's request.

3.  The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both 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.

4.  During the period of service under review, the applicant received NJP on at least three occasions, he was convicted by special court-martial, and he was subsequently charged with offenses punishable by a bad conduct or dishonorable discharge.  He completed about half of his 3-year enlistment obligation, he had 86 days of time lost (nearly 3 months), and he was reduced to private (E-1) prior to his discharge.  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.

5.  The applicant's post-service conduct was considered.  However, his post-service conduct is insufficient as a basis for upgrading his 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)                                         AR20140013969



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ABCMR Record of Proceedings (cont)                                         AR20140013969



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