IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150007126 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: * he believes his discharge to be unjust because he was a 20-year old "black boy" at the time, being influenced by Vietnam veterans returning home with their life-and-death war stories * he was afraid but did not know the proper way to exit the military, so he went absent without leave (AWOL) * his AWOL status in October 1973 was due to stress for which he never received medical treatment * now he is a 62-year old grandfather who has been and still is an asset to his church community and family * were his discharge to be upgraded, he could get medical treatment * when you check his record you will see he was a good Soldier until the Vietnam veterans came home * it has been over 40 years since his discharge and he would like it reconsidered to enable him to receive medical treatment at a Department of Veterans Affairs (VA) Medical Center * he included statements from community leaders and individuals who have known him most of his life and have knowledge of his conduct, character, and community involvement 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * VA Form 21-4138 (Statement in Support of Claim) * correspondence from the Army Review Boards Agency * six letters of support 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 18 September 1972. 3. His military records contain a DD Form 458 (Charge Sheet), dated 3 October 1973, showing he was charged with: * stealing jewelry valued at $4.35 from the Post Exchange on 10 August 1973 * stealing a television set valued at $149.95 from the Post Exchange on 27 August 1973 * failing to obey a lawful order issued by his commanding officer to go to home and get his shaving gear and clothes and return in 1 hour on 10 August 1973 * failing to obey a lawful order issued by his commanding officer to go to the field on 10 September 1973 * failing to obey a lawful order from his superior noncommissioned officer to remove a stain from the floor on 6 August 1973 * failing to obey a lawful order from his superior noncommissioned officer to clean out two desks on 10 September 1973 * being disrespectful in language toward his superior noncommissioned officer by saying, "get f___ed," or words to that effect on 4 August 1973 * breaking restriction on 10 September 1973 * absenting himself from his unit from 13 August 1973 until 22 August 1973 * absenting himself from his unit from 11 September 1973 until 25 September 1973 4. On 5 October 1973, 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 Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf. 5. His discharge packet contains a medical statement signed by a medical officer, the Chief, Department of Clinics, dated 15 October 1973, and an undated Mental Status Evaluation, presumably from the same time. Both documents show he did not suffer from any defects or mental illness which would have contributed to his misconduct. He was found physically and mentally fit for duty without limitations, responsible for his actions, and able to understand and participate in board proceedings. 6. On 26 October 1973, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation  635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate. 7. On 20 November 1973, he was discharged under other than honorable conditions. His DD Form 214 shows he was credited with 1 year, 1 month, and 11 days of total active service with 23 days of lost time due to being AWOL. 8. He petitioned the Army Discharge Review Board, requesting an upgrade of his discharge. On 13 April 1976, his request was denied. The board determined his discharge was both proper and equitable. 9. The applicant provided six letters of support. The letters are authored by two State of Mississippi Representatives, the pastor of Greater Bethel African Methodist Episcopal Church, the Mayor of City of Mound Bayou, the Bolivar County Road Manager, and the Bolivar County District Three Supervisor. The letters attest to his volunteer work with the Boy Scouts of America and his active involvement with his church where he serves as the assistant superintendent of the Sunday school, president of the lay organization, and member of the choir, and is a valued employee with the Bolivar County Road Department. 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 charged with theft on two occasions, disobeying orders given by his superiors on multiple occasions, being disrespectful in language, breaking restriction, and being AWOL on two occasions totaling 23 days of lost time. 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. Although he contends he suffered from untreated stress, he did not provide any documentation to corroborate this contention and the mental status evaluation included in his discharge packet and corresponding medical statement show he did not suffer from any defects or mental illness which would have contributed to his misconduct. He was found physically and mentally fit for duty without limitations, responsible for his actions, and able to understand and participate in board proceedings. 5. 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. 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 warranting an honorable or general discharge. 7. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for VA benefits. Each request is individually decided based on the evidence presented. 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) AR20150007126 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007126 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1