BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001155 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 BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001155 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. BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001155 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 two previous applications for an upgrade of his discharge under other than honorable conditions to an honorable discharge. 2. The applicant states he is providing a new argument that was not previously considered. 3. The applicant provides a self-authored statement, dated 16 November 2015 and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 AC74-1004 on 12 June 1974 and Docket Number AC77-05104 on 14 September 1977. 2. The applicant provided a new argument that was not previously considered by the Board that warrants consideration at this time. 3. On 29 October 1965 at age 17, the applicant enlisted in the Regular Army for a period of 3 years. He completed training and was awarded military occupational specialty 91B (Medical Specialist) and progressed normally to pay grade E-4. 4. His DA Form 20 (Enlisted Qualification Record) shows he repeatedly had numerous periods of lost time due to being absent without leave (AWOL) or in confinement. 5. On 30 August 1967, he received his first nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without (AWOL) from 1 August to 21 August 1967. The punishment included reduction to private first class/E-3, forfeiture of $23.00 pay, and 14 days of extra duty. 6. On 26 March 1968, a special court-martial convicted the applicant of one specification of being AWOL from 1 December 1967 to 6 March 1968. He was sentenced to confinement at hard labor for 6 months and forfeiture of $90.00 pay for 6 months. The convening authority approved only so much of the sentence that provided for 6 months in confinement at hard labor (suspended) and forfeiture of $60.00 pay for 6 months. 7. The applicant was AWOL from 3 to 13 May 1968 and the suspended portion of the applicant's sentence was vacated. The unexecuted portion of the sentence to confinement at hard labor for 6 months was ordered to be duly executed and he was confined for 60 days. 8. On 15 August 1968, a review by the Staff Judge Advocate shows: * the applicant was tried by a general court-martial on 16 July 1968 for being disrespectful toward a commissioned officer, damaging military property, and willfully disobeying a lawful order from a commissioned officer * he pled guilty to all of the charges and specifications * an out-of-court hearing determined the applicant was aware of the meaning and effect of his pleas of guilty * the defense offered no evidence on the merits * every essential element of the offenses alleged were established beyond a reasonable doubt by the applicant's pleas of guilty * there was a pretrial agreement with the convening authority for the applicant's pleas of guilty in exchange for a bad conduct discharge, reduction to E-1, and confinement for 18 months * the findings were correct in law and fact 9. A defense counsel certificate and statement of review signed by the applicant shows he was provided a copy of the general court-martial post-trial review. He was advised of his right to submit a statement to be attached to the record and to answer any matter that he considered was adversely obtained from outside the record. The applicant desired to submit nothing. 10. Headquarters, U.S. Army Training Center and Fort Leonard Wood, General Court-Martial Order Number 108, dated 7 September 1968, shows the applicant pled guilty and was convicted by a general court-martial of disrespecting a commissioned officer, damaging military property, and willfully disobeying a lawful order from a commissioned officer. 11. He was sentenced to confinement at hard labor for 2 years, forfeiture of all pay and allowances, and receipt of a bad conduct discharge. His sentence was adjudged on 16 July 1968. In accordance with the pre-trial agreement, the convening authority approved only so much of the sentence as provided for confinement for 18 months, a forfeiture of all pay and allowances, and the bad conduct discharge. 12. U.S. Disciplinary Barracks General Court-Martial Order Number 33, dated 14 January 1969, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, shows that after completion of all required post-trial and appellate reviews, the findings and sentence that provided for 18 months in confinement, a forfeiture of all pay and allowances, and the bad conduct discharge were affirmed. The provisions of Article 71(c), UCMJ, were complied with and the sentence was ordered duly executed. 13. The applicant was discharged on 10 March 1969. His DD Form 214 shows he was separated as a result of court-martial with a bad conduct discharge. It further shows he completed 2 years, 1 month, and 29 days of creditable military service and he had 434 days of lost time. 14. The ABCMR previously denied the applicant's request for a discharge upgrade on two separate occasions. 15. The applicant submitted a letter to the Board, dated 16 November 2016, wherein he stated: a. The presumption of regularity that might normally permit you to assume that the military acted correctly in characterizing his specific service as less than honorable does not apply to his case because of the following evidence and supporting documentation that he is currently submitting on his behalf. b. He believes these reasons justify an upgrade of his discharge because they fall under the grounds of upgrading a discharge based upon: (1) propriety – requesting a change due to an error in the application of a current regulation, statue, constitutional provision or other source of law; and (2) equity: (a) the policies and procedures under which he was discharged differ in material respects from those currently applicable on a service­wide basis; and (b) the discharge is inconsistent with the standards of discipline in the military service of which he was a member at the time of issuance, his capacity to serve should have taken into consideration age, educational level, family and personal problems, capricious actions, and discrimination. c. On 11 November 2015 (Veterans Day), while doing volunteer work at his grandson's school, he was asked if he was a veteran. He said he was not. Upon returning home, his grandson wanted to know why he said he was not a veteran. His grandson had heard him tell so many positive stories about the military. Tearfully, he had to explain to him that, although he was a veteran his country chooses not to honor him. His grandson wanted to know why. On that date, 11 November 2015, he came to the conclusion that his discharge should be upgraded to honorable because: * under current standards, he would not have received the type of discharge he received * his ability to serve was impaired by his youth and immaturity * his ability to serve was impaired by his deprived childhood and background * he faced racial discrimination, which impaired his ability to properly serve * his punishment was severe compared with today's standards * the punishment he received was too harsh, it was much worse than most people got for the same offense * although his discharge was based on several offenses, they were false and he was punished twice for the same offense * his pretrial agreement was a violation of his rights * he has been a good citizen since his discharge d. He refers to the Equal Opportunity Department of Defense (DOD) studies on discrimination in the military, a review of Military Department investigations of allegations of discrimination by military personnel by the DOD Inspector General, March 1994. This review showed 86 percent of the Services' investigations of military discrimination complaints reviewed found sufficient evidence to support the conclusions drawn. e. He was 17 years old when he joined the military. His ability to serve was impaired by his youth and immaturity. According to Wikipedia, the free encyclopedia in psychology, maturity is the ability to respond to the environment in an appropriate manner. This response is generally learned rather than instinctive. Maturity also encompasses being aware of the correct time and place to behave and knowing when to act according to the circumstances and the culture of the society one lives in. Adult development and maturity theories include the purpose in life concept, in which maturity emphasizes a clear comprehension of life's purpose, directedness, and intentionality, which contributes to the feeling that life is meaningful. f. He was one of six children growing up in the housing projects on the Chicago west side in the 1960's in a single-parent household. His ability to serve was impaired by his deprived childhood background. Piaget's theory states there are four main stages to development: the sensorimotor stage, preoperational stage, concrete operational stage, and formal operational stage. These four stages cover not only intellectual development, but also the development of skills. If one or more of these stages are missed, the skills may never develop (Curtiss, Susan (1977)). g. He faced racial discrimination that impaired his ability to properly serve. An article written about black and white relations in the U.S. Military between 1940 and 1972 by Major A____ M. O____ helps to illustrate this point when he states that by 1967 DOD recognized that its program had failed and sent a team to a dozen bases to look at every aspect of race relations. As a result, Secretary of Defense McNamara noted: "One fact became painfully clear: The voluntary program had failed, and failed miserably. This failure we found intolerable." Secretary of Defense McNamara admitted the program lacked sanctions and leadership, starting at the top. Thus, the lesson learned from Sutton and McNamara was that commitment and sanctions were needed to overcome racism and blindness. An example of this blindness is apparent in a comment by the new Secretary of Defense Clifford, who on 25 July 1968 said: "By 1955 all formal racial discrimination had been eliminated, although vestiges lingered into the early 1960's." This statement does not stand up to the facts, as Secretary of Defense McNamara had attested to the previous year. h. Although his discharge was based on several offenses, they were non-applicable to him; his pretrial was a violation of his rights and he was punished twice for the same charge. Although, he signed a pretrial agreement, he believes it should not be binding because before, during, and after his trial he was never told he did not have to plead guilty to all charges and specifications. He did not fully understand the terms of the agreement and the unclear terms were never explained to him. He was not told the convening authority could agree to limit, suspend, or mitigate all or portions of the sentence. He was never advised that he may withdraw from a pretrial agreement at any time, especially in light of the coercive atmosphere then present at trial and in chambers. The following charges were not justified or warranted under the UCMJ: (1) Article 89, because he was not talking to Major H____, who was not in the orderly room when he called other enlisted men in the room, some of those names. The enlisted men were making fun of him because he was being escorted to the stockade. Thereby, he did not behave with disrespect toward an officer in that manner under those terms. (2) Article 108, because the television set in question was the private property of one of the enlisted men in the orderly room and not Government property. Furthermore, he did not and could not damage a television set that was not working as evidenced on the repair that was done to it. (3) Article 90, because he was punished by being given 5 days in solitary confinement for refusing to go on shotgun detail in 100 degree weather without a hat or helmet. It is double jeopardy to be punished twice for the same offense. REFERENCES: 1. Army Regulation 635-200, 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. 2. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 3. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days; Article 108, willfully damaging military property; and Article 90, willfully disobeying a lawful order of a commissioned officer. DISCUSSION: 1. The applicant contends that his bad conduct discharge should be upgraded to honorable. 2. The gravity of the applicant's offenses warranted his trial by a general court-martial. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct which led to his conviction. His discharge accurately reflects the seriousness of the offenses for which he was discharged. 3. The applicant's contention that he was young and immature is outweighed by the fact that he demonstrated the capacity for honorable service by completion of basic training and advanced individual training, advancement to pay grade E-4, and completion of approximately 21 months of service without a discreditable incident of record. 4. With respect to his contentions: a. Under current standards, he would not have received the type of discharge he did – The applicant provided no evidence or examples to support his claim. b. His ability to serve was impaired by his deprived childhood background – There is no evidence and the applicant provides no evidence to support this assertion and, as noted above, he had demonstrated that he could serve successfully. c. He faced racial discrimination and that impaired his ability to properly serve – There is no evidence of racial discrimination or prejudice either before, during or after the general court-martial. The applicant provided no evidence that he was racially discriminated against. d. The punishment he received was too severe compared with today's standards – He pled guilty to all charges and specifications in exchange for a pretrial agreement. There is no evidence and the applicant provides no evidence to support this assertion. e. The punishment he received at discharge was too harsh, it was much worse than most people got for the same offense – There is no evidence to support this assertion. f. Although his discharge was based on several offenses, they were false and he was punished twice for the same charge and his pretrial agreement was a violation of his rights – As noted in the Staff Judge Advocate's review, the applicant's guilty pleas established his guilt beyond a reasonable doubt. g. He has been a good citizen since his discharge – While the Board has taken cognizance of the applicant's good post-service conduct; this factor individually is not so meritorious as to warrant the relief requested. 5. The applicant was accused of several offenses and made what was tantamount to a civilian plea bargain. His case is analogous to that of other individuals who pled guilty in exchange for a prearranged sentence rather than risk more stringent sanctions of a court-martial in that he voluntarily deprived himself of any and all defenses. The staff of this Board has repeatedly examined his arguments and the Board has considered his case twice, even though his submissions were comprised only of unsubstantiated assertions, accusations, and rationalizations. 6. The applicant's contentions relate to evidentiary and procedural matters which were adjudicated finally and conclusively in the court-martial trial and appellate review process, and furnish no basis for an upgrade of his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001155 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001155 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2