IN THE CASE OF: BOARD DATE: 23 February 2016 DOCKET NUMBER: AR20150006606 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 general, under honorable conditions discharge (GD) to an honorable discharge (HD). 2. The applicant states he believes his discharge should be an HD because he was a good Soldier. When he entered the Army he was only 19 years old and didn’t understand. During his period in the service he experienced discrimination in his unit. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 29 December 1972. He was trained in and served in military occupational specialty 63B (Wheel Vehicle Repairman). 3. On 27 July 1973, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following articles of the Uniform Code of Military Justice (UCMJ): * Article 86 (3 specifications) - failing to go to his appointed place of duty at the time prescribed (absent without leave -AWOL) * Article 89 – being disrespectful towards his superior commissioned officer * Article 90 – (2 specifications) - willfully disobeying orders of superior commissioned officers * Article 91 – (2 specifications) - willfully disobeying orders of non-commissioned officers 4. On 16 August 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge 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. He indicated he had not been subjected to coercion whatsoever by any person and made his request of his own free will. He elected not to submit a statement on his own behalf. 5. In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge. 6. On 10 September 1973 the separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10. He directed that the applicant receive a GD. 7. On 17 September 1973 the applicant was discharged accordingly. He completed 8 months and 19 days of net active service. 8. The applicant’s military record does not contain any evidence to show he experienced or reported any acts of discrimination against him throughout his military service. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 discharge (HD) or general discharge (GD) is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an HD 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 GD 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 HD. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his GD should be upgraded to an HD because he was only 19 years old when he enlisted in the Army and he experienced discrimination during his military service. There is no evidence that the applicant’s age prevented him from successfully performing the service for which he contracted for during his enlistment processing. He successfully completed basic training and was awarded a military occupational specialty. These facts show he understood the basic conduct expected of all Soldiers. In addition, there is no evidence showing he took any action to address any acts of discrimination against him through his chain of command, the chaplain, or by any other means. 2. He was charged with the commission of offenses punishable under the UCMJ with a punitive discharge for being AWOL, for being disrespectful towards his commissioned officers, and for disobeying his superior commissioned and noncommissioned officers. After consulting with legal counsel, he voluntarily requested discharge in lieu of trial by court-martial to avoid possible incarceration. 3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. His service did not support an HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now. 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) AR20150006606 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006606 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1