IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150005502 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. 2. The applicant states he would like his discharge upgraded. It has been a long time and his benefits have been denied because of this. He wants to be the Soldier he used to be with a full soul, not an empty heart. 3. The applicant provides: * Congressional correspondence * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Commonwealth of Massachusetts Probate Court court-ordered name change * Military Surplus for Homeless Veterans and Veterans in Need brochure * Certificate of Nomination for Lifetime Membership in The American Legion * World War II Airborne Demonstration Team Certificate of Honorary Membership * Cold War Certificate of Recognition * Kennebunk Post newspaper article, dated 4 February 2011, titled: "Surplus program aid veterans in need" * self-authored letter, dated 3 September 1998 * DA Form 2-1 (Personnel Qualification Record – Part II) * congratulatory letter, dated 24 May 1978 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 17 July 1974, the applicant enlisted in the Regular Army under the name W____ M____ R____. The remarks block of his DD Form 4 (Enlistment Contract – Armed Forces of the United States) states his name changed from W____ M____ W____ to W____ M____ R____ by court-order, dated 3 July 1974. 3. On 7 July 1976, he was honorably released from active duty. 4. After a break in service, he again enlisted in the Regular Army on 6 April 1977. On 21 May 1978, he was honorably discharged for immediate reenlistment. He reenlisted in the Regular Army on 22 May 1978. 5. On 8 August 1980, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for driving while drunk and causing an accident. 6. On 20 July 1983, a bar to reenlistment was initiated against him. The DA Form 4126 (Bar to Reenlistment Certificate) shows his other misconduct as follows: * 2 June 1982 – failure to report * 3 June 1983 – $20.00 nonpayment of a just debt to Tradewinds North Laundry Mart * 19 June 1983 – $70.00 nonpayment of a just debt to Beaches Market * 26 June 1983 – $60.00 nonpayment of a just debt to the Noncommissioned Officers' Club * 24 June 1983 – failure to report * 28 June 1983 – $60.00 nonpayment of a just debt to the Noncommissioned Officers' Club * 18 July 1983 – $50.28 nonpayment of a just debt to Minit Mart Foods * 18 July 1983 – $34.87 nonpayment of a just debt to Minit Mart Foods 7. On 20 July 1983, he acknowledged receipt of the bar to reenlistment and he elected not to submit a statement in his own behalf. 8. A DA Form 4187 (Personnel Action), dated 16 August 1983, shows his duty status changed from present for duty to absent without leave (AWOL) effective 15 August 1983. 9. On 16 August 1983, the bar to his reenlistment was approved. 10. On 22 August 1983, he surrendered to military control and his duty status was changed to present for duty. 11. On 22 August 1983, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for three instances of failing to go at the time prescribed to his appointed place of duty (formations) on or about 1 August 1983. 12. On 26 August 1983, his duty status was again changed from present for duty to AWOL. 13. On 31 August 1983, his duty status was changed from AWOL to AWOL in the hands of civil authority. The DA Form 4187, dated 2 September 1983, shows he was apprehended on 31 August 1983 and was being held at the Montgomery County Jail pending charges for two "cancelled" bad checks. 14. On 2 September 1983, his duty status was changed from AWOL in the hands of civil authority to AWOL. The DA Form 4187, dated 6 September 1983, shows he was released from civil confinement on bond. 15. On 6 September 1983, he surrendered to military control and his duty status was changed to present for duty. 16. His complete discharge package is not available for review. A letter from the Assistant Adjutant General, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, dated 28 November 1983, shows the applicant submitted an application for discharge for the good of the service under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 17. On 29 November 1983, the separation authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200 and directed his reduction to E-1 and characterization of his service as under other than honorable conditions. 18. On 2 December 1983, he was discharged accordingly. His DD Form 214 for the period ending 2 December 1983 shows he had lost time from 15 August 1983 through 21 August 1983 and from 26 August 1983 through 5 September 1983. 19. The Commonwealth of Massachusetts Probate Court changed his name from W____ M____ R____, Sr., to W____ M____ W____, Sr., effective 27 September 1994. 20. He provided a brochure of the Military Surplus for Homeless Veterans and Veterans in Need, a news article from the Kennebunk Post describing his volunteer service, a nomination for lifetime membership to The American Legion, a Certificate of Honorary Membership in the World War II Airborne Demonstration Team, a Certificate of Recognition for service during the Cold War, a copy of his DA Form 2-1, and a congratulatory letter on the occasion of his reenlistment. 21. He also provided a self-authored letter, dated 9 March 1998, explaining his family circumstances and the events leading to his request for discharge. He acknowledged he understood a Soldier is responsible for the actions of a spouse and dependents. His then-future foreign-born wife didn't understand the pressure applied to him by his unit or the severity of the damage she was creating which resulted in his discharge under other than honorable conditions. 22. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10 provides that a member who 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 at any time after court-martial charges are preferred. Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service. Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of veterans' benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. 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. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. Although his complete discharge packet is not available for review, his records show he voluntarily requested discharge instead of facing court-martial charges for an offense or offenses which could have resulted in a punitive discharge under the UCMJ. 3. His misconduct clearly diminished the overall quality of his service during his last term of enlistment below that meriting an honorable or a general discharge. 4. In view of the foregoing evidence, there is no basis for granting the applicant's request. 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) AR20150005502 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005502 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1