IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150010393 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150010393 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: 31 May 2016 DOCKET NUMBER: AR20150010393 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 his discharge under other than honorable conditions be upgraded to an honorable discharge. 2. The applicant states he served in the Army and he was a good Soldier. He was chosen to go to Berlin, Germany and he was told only good Soldiers were sent there. No one ever gave him a chance or time to say what went wrong. He wants someone to hear his side. 3. He was the tenth of 14 children and he did not finish high school. He enlisted in the Army to help support his younger sisters and brothers. He attended basic training at Fort Jackson, SC. He was then stationed at Fort Lee, VA; Fort Knox, KY; and Berlin, Germany. He was a good Soldier and enjoyed the Army. All he really wanted to do is help his mother. He was young and immature and in love with his girlfriend. He was homesick and sad,too. Wanting to come home, he said anything he could think of to get home. He regrets everything said or done. To this day he does not remember everything that happened, but he knows he was not completely in the wrong. He has three brothers who served in the Army ,all of whom received honorable discharges. 4. The applicant provides three personal references. 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. On 6 November 1979, at the age of 18, the applicant enlisted in the Regular Army for 3 years. 3. On 12 May 1980, he was assigned to Company C, 3rd Battalion, 6th Infantry, Berlin Brigade in Germany. 4. On 23 September 1980 he received nonjudicial punishment (NJP) for disobeying a lawful order from a noncommissioned officer (NCO). His punishment consisted of 7 days of correctional custody. 5. On 23 September 1980 he appealed the punishment and submitted a statement. The applicant stated: a. He was told by a staff sergeant (SSG) to put his tent up with a specialist four. He had been told by a sergeant to put his tent up with a private. His tent was already up and it was beginning to rain. The SSG then told him to put up another tent with the specialist four. b. He was appealing his punishment because he had not done anything wrong to deserve to go into correctional custody. Other Soldiers in the company had done things worse than disobeying an order and received less punishment. c. Earlier he told the cadre several times that he was having problems soldiering and he did not like the Army. He wanted to get out whether by an honorable discharge or a dishonorable discharge he did not care. His attitude towards the Army and his superiors was very negative. He had spoken to several psychologists, but none seemed to help. d. Since he had been in the Army, he had witnessed racial discrimination, which is one of the reasons he did not want to put the tent up with the specialist four. e. He wanted to get out of the Army. Sometimes he felt the pressure of suicidal thoughts. He knew it was the wrong way out, but it was a way out. He found it very difficult to obey orders and perform his duties in a military manner. f. He had a brother in the Army who was a first sergeant and who told him there was a way that he could get out without getting into any trouble. He told this to the cadre and was ignored. Captain B____ asked him if he wanted a chapter 5 discharge and he said he did. However, he never heard anything more about it. 6. On 5 October 1980 his appeal was denied. 7. On 8 October 1980 court-martial charges were preferred against the applicant for: * being disrespectful in language and deportment toward an NCO on 8 October 1980 * two specifications of willfully disobeying a lawful order from an NCO on 8 October 1980 * being derelict in the performance of his duty on 8 October 1980 in that he willfully failed to perform correctional custody training 8. On 30 October 1980, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He acknowledged he understood the offenses he was charged with and he was: * making the request of his own free will and without coercion * guilty of the offense for which he was charged * afforded the opportunity to speak with counsel prior to making this request * advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate 9. He was advised he could submit statements in his own behalf. He elected not to submit any statements. In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions and he: * would be deprived of many or all Army benefits * may be ineligible for many or all veterans? benefits 10. On 30 October 1980 the applicant's commander recommended approval of his request for discharge for the good of the service. The applicant had a significant negative influence on the other Soldiers in his platoon and in the company. He was a disruptive influence to the company and the longer he remained with the unit, the more good, impressionable Soldiers would be adversely affected by his actions. He strongly recommended approval of his request and that he receive an under other than honorable conditions discharge. 11. On 30 October 1980 the battalion commander recommended approval of the applicant's request for discharge for the good of the service. The commander concurred with the unit commander's comments. The applicant was a racist and disruptive, by his own admission, and he had an undesirable influence on others. Given the serious nature of the offenses, he should be court-martialed; however, because he could not be tried until 17-22 November 1980, it seemed expedient to recommend approval of the chapter 10 request for discharge. 12. On 4 November 1980 the appropriate authority approved the applicant's request for discharge for the good of the service and directed the applicant’s reduction to private (PV1)/E-1 and discharge under other than honorable conditions. 13. On 17 November 1980 he was discharged under the provisions of AR 635-200, chapter 10, by reason of conduct triable by court-martial. He had completed 1 year and 12 days of creditable active service that was characterized as under other than honorable conditions. 14. On 12 October 1982 the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge. 15. The applicant provided three personal references. a. Pastor C____ knew the applicant for 15 years and he is an individual everyone would love to be around. His upbeat character was what drew so many people toward him and allowed testimonies to become more of a reality. As his pastor, she believes special considerations should be taken to assure the welfare of him and his wife and family because of he is of outstanding moral fiber and virtue. b. Pastor T____ knew the applicant for over 13 years. He is an outstanding young man who loves his family and friends. He is the type of person that would do all he could for a person and ask nothing in return. c. Reverend B____ knew the applicant for several years. He has proven to be kind, generous, loyal, and dedicated. He is regarded with high esteem among those who come in contact with him. His reaching out to senior citizens needing help with projects or the young needing direction in life makes him an asset to any community. REFERENCES: AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an Under Other Than Honorable Conditions Discharge Certificate was normally furnished an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant contends he was young and immature and in love with his girlfriend. He was homesick and sad. Wanting to go home, he said anything he could think of to get there. 2. The applicant’s age at time of his enlistment was noted. However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges. The age of the applicant is not normally a mitigating factor used as a reason to change a properly issued discharge. 3. In his appeal to his NJP it was apparent that he disliked the Army and had lost motivation for any further satisfactory service. His conduct was characterized by disrespect toward superior authorities and disobedience of orders. There were no mitigating factors or justification for his misconduct. 4. His voluntary request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations. 5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10. There is no evidence of procedural or other errors that would have jeopardized his rights. 6. The applicant's post-service conduct was noted. However, good post service conduct alone is not sufficiently mitigating to upgrade a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010393 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010393 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2