IN THE CASE OF: GRIGGS, GEORGE S. BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150005573 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x____ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150005573 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. IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150005573 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 earlier request for an upgrade of his undesirable discharge. He also requests, in effect, correction of the reason and authority for separation shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 2. The applicant states: a. He wants his character of service upgraded to honorable or general under honorable conditions. If this request is granted, he also wants his DD Form 214 amended to replace all negative entries with entries reflecting an ordinary discharge after completion of the obligated period of service. b. He was effectively denied his right to counsel. His company commander served as his accuser, sole-listed prosecution witness, and the source of the Morning Report that served as evidence of his charges for being absent without leave (AWOL). His company commander served as his defense counsel and first-level of approval for the request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He did not receive counsel from a Judge Advocate General (JAG) Corps officer, a private attorney, or even a line officer. 3. The applicant provides: * DD Form 214 * service personnel records 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002077661 on 16 January 2003. 2. The applicant's argument that he was denied his right to counsel is new evidence that will be considered by the Board at this time. 3. He enlisted in the Regular Army on 25 September 1967 for a period of 3 years. He completed basic and advanced individual training and he was awarded military occupational specialty 72C (central office telephone switchboard operator). He served in Vietnam from 2 August 1968 to 20 June 1969. 4. Between December 1969 and July 1970, nonjudical punishment (NJP) was imposed against him on four occasions for: * failing to obey a lawful order * failing to repair (two specifications) * being AWOL from 9 June 1970 to 1 July 1970 5. On 26 March 1971, charges were preferred against him for being AWOL from: * 2 November 1970 to 20 January 1971 * 8 February 1971 to 23 March 1971 6. On 26 March 1971, he submitted a 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 indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf. a. Page 2 of his request for discharge includes the following witnessing statement: Having been advised by me of (the basis for this contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge) (the significance of his suspended sentence to a bad conduct or dishonorable discharge), of the effects of this request for discharge, and the rights available to him, (Applicant) personally made the choices indicated in the foregoing request for discharge. b. Captain J____ R. R____, Infantry, signed as counsel. Following his signature block, the parenthetical entry "If counsel is not a JAGC [Judge Advocate General Corps] Officer, he must indicate whether he is qualified under Article 27(b)(1) of the Uniform Code of Military Justice 1951" is struck out. c. There is no documentation indicating Captain R____ was qualified as counsel under Article 27(b)(1) of the Uniform Code of Military Justice, 1951. Captain R____ was the Commander, Headquarters Company, Headquarters Command, Fort Jackson, SC, during the period of pretrial confinement. 7. On 12 April 1971, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an undesirable discharge. 8. On 20 April 1971, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate. He completed 3 years, 1 month, and 13 days of total active service with 183 days of lost time. Item 11c (Reason and Authority) of his DD Form 214 shows he was discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10. 9. On 5 October 1973, the Army Discharge Review Board denied his request for a discharge upgrade. 10. On 16 January 2003, the ABCMR denied his request for a discharge upgrade. The ABCMR determined the discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of his discharge was commensurate with his overall record of military service. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. Chapter 10 of the version currently in effect is essentially unchanged. b. The regulation stated the consulting counsel would sign as a witness, indicating he was a commissioned officer of the JAG Corps, unless the request is signed by a civilian counsel representing the applicant. c. 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. d. 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. 2. Article 27(b)(1) of the Uniform Code of Military Justice states a trial counsel or defense counsel detailed for a general court-martial must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State. DISCUSSION: 1. The applicant contends he was denied his right to counsel because his counsel was not a JAG Corps officer. The evidence shows the applicant was counseled on 26 March 1971 by the Commander, Headquarters Company, Headquarters Command, Fort Jackson, an infantry officer. 2. There is no documentation indicating counsel was qualified under Article 27(b)(1) of the Uniform Code of Military Justice, 1951, to counsel the applicant. The record does not show that the applicant was offered qualified counsel. 3. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 4. The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case. 5. His record of service included four NJPs and 183 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005573 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005573 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2