BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150001039 


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:

* he was 17 years old when he enlisted in the Army in 1972 and he was discharged by the time he was 18 years old
* he was young and immature at the time
* he served in the military for 1 year and 11 days and he was still very young upon his release from the Armed Forces
* his father thought the Army could make a difference in his life
* he grew up in Chicago and attended all Black schools and his father was from the South and the experiences he grew up with were different from his father
* he was sent to a new environment – he had never been away from home or his parents
* he encountered racism, bigotry, and hate which were things he was not old enough to handle in the 1970's
* he has been married for 24 years – he worked for over 30 years and is retired
* he attended college up to his senior year and had to leave upon his father's death
* his best years have gone by and he wants to correct what he thinks was his worst year
* he should have received an honorable discharge – this would make his life complete
* he raised a family with his first wife for over 20 years and he is currently married with a 10-year old daughter
* he set the example for all who know him and he has been a productive and law-abiding citizen since 1973
* his short stay in the Army helped mold him into a responsible adult, taught him discipline, and gave him structure
* he should not be held accountable for a mistake he made over 40 years ago at the age of 17 or 18
* he is truly sorry

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* four character-reference letters

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 29 September 1954.

3.  He enlisted in the Regular Army on 25 February 1972 at 17 years of age.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 10 March 1972, for disobeying a lawful order from a superior noncommissioned officer (NCO)
* on 4 May 1972, for using disrespectful language to a superior NCO
* on 1 June 1972, for using disrespectful language to a NCO
* on 28 July 1972, for disobeying a direct order from his commanding officer

5.  On 11 August 1972, he was awarded primary military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  On 13 September 1972, he was awarded primary MOS 76S (Automotive Repair Parts Specialist) with secondary MOS 76P.

6.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Headquarters and Headquarters Company, 123d Maintenance Battalion, 1st Armored Division, Germany, effective 12 October 1972.

7.  On 29 November 1972, NJP was imposed against him for using disrespectful language to a superior NCO and disobeying a lawful order.  He refused to sign the DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ).

8.  Witness statements, dated 18 and 19 January 1973, show:

	a.  On 14 and 15 December 1972, he failed to be at his appointed place of duty.

	b.  On 19 December 1972, he failed to report to his appointed place of duty.

	c.  On 20 December 1972, he disobeyed the orders of a superior NCO.

	d.  On 18 January 1973, the applicant was seen driving a government truck which he was not authorized to be driving at the time.

	e.  Two Soldiers were directed by their platoon leader to get the applicant and have him report.  While in the performance of their duty, the applicant verbally assaulted the two Soldiers and attacked them.  He cut one of them with a pocket knife causing the Soldier to incur two sutures.

	f.  His platoon leader and platoon sergeant indicated he had a poor attitude which affected everything he did.  He was counseled on numerous occasions, he ignored everything said to him, and he was eventually transferred to a different section in the company.

9.  On 19 January 1973, charges were preferred against him for the following offenses:
* 
on or about 14 December 1972, for absenting himself from his place of duty
* on or about 15 December 1972, for dereliction of duty
* on or about 19 December 1972, for leaving his appointed place of duty without authority
* on or about 20 December 1972, for using disrespectful behavior towards a superior commissioned officer
* on or about 20 December 1972, for disobeying a lawful order
* on or about 18 January 1973, for assaulting another Soldier by inflicting grievous bodily harm upon him
* on or about 12 January 1973, for disobeying a lawful order and using disrespectful language toward a superior NCO

10.  On 23 January 1973, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial after consulting with counsel who advised him of the basis for his contemplated trial by court-martial, the effects of requesting discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and the rights available to him.

11.  In his request for discharge, he acknowledged:

* he understood he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Department of Veterans Affairs as a result of such a discharge
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions

12.  In conjunction with his request for discharge, he provided a statement in which he indicated:

* discharge would be good for the service and it would prevent him from the punishment, harassment, and nonsense he had incurred since he had been in the Army
* he was promised airborne training when he enlisted and he was kicked out of jump school on the last day of tower week based on something someone else said to the sergeant first class
* his problems began in basic training when he could not get across a bar because he hurt both his hands
* he received an Article 15 in advanced individual training for being 1 minute late to an inspection because he had just come from the hospital
* his troubles just got deeper and deeper and he felt he had done nothing
* in Germany his temper was very bad because it seemed like someone was trying to get him into trouble every time he looked up 
* he was falsely accused of being disrespectful by his platoon sergeant
* he would leave the unit supply unsecure because he did not have a key to lock it
* he believed his first sergeant had something against him
* he had to defend himself against two big special forces Soldiers when they came after him – he pulled out his little pocket knife and put a little hole in the arm of one of the Soldiers
* he could never adjust to the military life

13.  On 2 February 1973, his immediate commander recommended approval of his request and issuance of an Undesirable Discharge Certificate.  He further stated the applicant's response to repeated counseling by NCO supervisors and commanders had been zero.

14.  On 5 February 1973, his battalion commander recommended issuance of an Undesirable Discharge Certificate.  He further stated that immediately prior to the stabbing incident, the unit was preparing court-martial charges against him for a series of offenses and the applicant had become recalcitrant and unmanageable.

15.  On 9 February 1973, his brigade commander recommended approval of his request for discharge and issuance of an Undesirable Discharge Certificate.

16.  On 17 February 1973, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

17.  On 5 March 1973, he was discharged accordingly.  His DD Form 214 shows he completed 1 year and 11 months of net active service.

18.  On 6 September 1974, the Army Discharge Review Board denied his request for an upgrade of his discharge.

19.  He provided a self-authored statement describing events leading to his enlistment in the Army, challenges he encountered while serving in the Army, and his post-service accomplishments.



20.  He also provided four character-reference letters from:

* his daughter who describes him as a superhero, amazing dad, and loving husband
* his wife who describes him as great husband, loving father, caring son, and helpful neighbor
* his pastor who states the applicant is a changed man and he has spent his life making up for the error in judgement he made all those years ago
* his neighbor and friend who stated the applicant is well known amongst his peers and community as a person who can be depended upon to lend a hand and he is a supporter of servicemen and women

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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 states 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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  His records show he was 17 and 18 years of age at the time of his indiscipline.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.

4.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  Records shows numerous attempts were made to correct his behavior.  His repeated misconduct clearly diminished the overall quality of his service below that meriting an honorable or a general discharge.  In view of the foregoing evidence of record, there is no basis for granting the applicant's request.

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)                                         AR20150001039



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ABCMR Record of Proceedings (cont)                                         AR20150001039



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