IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150005070 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 to honorable. 2. The applicant states: * the type of discharge he received was due to his youth and immaturity * he has rejoined civilian life since the time of his offenses and received salvation for his sins * he entered the Army with the intention of learning how to become a Soldier so he could serve his country and be a respectable, proud young man, but ended up with an undesirable discharge * as a trainee he was one of only six Soldiers from his company to receive a promotion * as the youngest man in his units, he always strived to outdo his fellow Soldiers and prove he was worthy * at his first day at William O'Darby Kaserne he met another Soldier who eventually introduced him to hashish, heroin, and speed, a side of life he never knew before * he had been told that the Vietnam war was over and the atmosphere around the military was conducive to eating, drinking, and being merry * one night he was in the company of his new friend and another Soldier while they stole from drug dealers in downtown Nuremberg, after which they ran back to the Kaserne with the stolen drugs * when they returned to the Kaserne to meet up and see who had what in his possession, his friend felt the other Soldier had stolen the bulk of the drugs from the dealers but did not confess to it and share the drugs * in retaliation, he and his friend went to the barracks room of the Soldier they felt was not providing a fair share of the stolen drugs and stole his stereo equipment * he was caught in the act, arrested, and was tried by a special court-martial * he told a story to bear the entire blame for the incident and keep his friend from getting into trouble since he was so close to his discharge date * he was confined 4 months and reduced to private/E-1 * after retraining at the U.S. Army Retraining Brigade at Fort Riley, KS, he was sent to Fort Leonard Wood, MO, where he worked in the motor pool * he worked hard, he continued to learn and earn the confidence of his superiors and eventually he was promoted to specialist four * while making a parts run one afternoon, he and a buddy found a magazine that contained a Federal stock number for equipment and he began ordering tools to build himself a tool box * they were caught and arrested * he also had one ounce of marijuana in his possession at the time * his case was reviewed and determined he had an unwillingness to adjust to military service and further rehabilitation would be futile * instead of going through another court-martial proceeding, he pled guilty and accepted an undesirable discharge for the good of the service * he is truly sorry for the actions of his youth * he has been embarrassed and living in shame, guilt, bitterness, and unforgiveness for the past 40 years * he is now a saved man through the blood of Jesus Christ * he realizes that he sinned, he repented and is asking that this chapter in his life be put behind him * he asks forgiveness for his crimes against the U.S. Army 3. The applicant provides: * Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim) * DD Form 214 (Report of Separation from Active Duty) 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 20 November 1973 at 17 years of age. 3. Headquarters, 1st Armored Division Artillery, Special Court-Martial Order Number 52, dated 7 October 1974, shows he was charged with and found guilty of stealing one receiver, one dual turntable, one long-playing record, and two laundry bags on 28 July 1974. He was sentenced to confinement at hard labor for 4 months, forfeiture of $217.00 pay per month for 4 months, and reduction to the rank/grade of private/E-1. 4. On 17 April 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 14 April 1975 through 15 April 1975. 5. On 9 September 1975, he again received NJP under the provisions of Article 15 of the UCMJ for being found sleeping at his post as a sentinel on 7 September 1975. 6. On 30 September 1976, he was charged with the larceny of two crane batteries, the property of the U.S. Government. He was also charged with possession of marijuana. 7. On 18 October 1976, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He submitted a statement in his own behalf, claiming he did not intend to participate in the theft of government property and was doing a friend a favor. He enjoyed his stay in the Army and hoped to remain in the Army, but he realized he would be at a disadvantage in his military career with these convictions. He hoped the characterization of his discharge would be honorable. 8. On 17 November 1976, he was discharged under other than honorable conditions. His DD Form 214 shows he completed 2 years, 8 months, and 18 days of total active service with 102 days of lost time. 9. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 10. Army Regulation 635-200 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 sentence 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. 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. 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's request for an upgrade of his discharge under other than honorable conditions was carefully considered. 2. His records show he was found guilty of stealing by a special court-martial and sentenced to confinement at hard labor. He subsequently received NJP on two occasions for being AWOL and for sleeping on duty. In September 1976, he was charged with the theft of government property as well as the possession of marijuana. These are offenses punishable under the UCMJ with a punitive discharge. 3. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 4. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 5. Although the applicant claims the actions which led to his discharge were the result of his youth and immaturity, there is no indication the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 6. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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) AR20150005070 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005070 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1