IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009508 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 IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009508 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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009508 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 his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states: a. He was born and raised in Charleston, SC, and is the oldest of eight children. In 1967, he graduated high school and soon afterwards moved to New York City, NY. He initially worked at a dress carrier. Eight months later, he was accepted into a banking training program and soon obtained a job with Bankers Trust. He thought his life had begun but 6 months later his life was interrupted by the draft. It was a major upset to his life and dreams. b. Entering the military was not a planned part of his journey. He failed the entrance exam for the Army, thinking if he did not pass he could go back to where he left off with his life. To his dismay, he was ordered to retake the exam. On 3 December 1968, he entered the Army and did basic combat training (BCT) at Fort Jackson, SC, and advanced individual training (AIT) at Fort Leonard Wood, MO. He subsequently volunteered for the Green Berets, twice for Vietnam, and then to become a military policeman (MP); he was denied each time. c. He almost became depressed because he was trying to serve his country to the best of his ability; however, he seemed to only be a number and not a Soldier. He was finally sent to Germany and, at the time, thought it was the worst that life could offer him. He again put in to go to Vietnam and was denied. As he looks back, he believes that subconsciously he was going through a mental breakdown and was trying to self-destruct by the hands of another. He subsequently became an alcoholic and alcoholism defined his life for the next 40 years. In April 2009, he became sober and has been sober since then. d. His father made sure he learned how to install wood floors and today he is a master of the art. Working for charity is quite fulfilling and sharing what he knows, in the form of helping someone, is a priceless gift. As he revisits his past, he can see some of the very selfish, arrogant ways that consumed his life. Impatience thrived within him. Today, he has learned humility is much needed in life and he works hard at being productive in society. He is always trying to help family, friends, and even strangers. He found a friend 14 years ago and today that friend is his wife. She has enriched his life. He is an active member of a church and Alcoholics Anonymous (AA), and he takes one day at a time. e. He has several health issues to include diabetes, hypertension, high cholesterol, eczema, arthritis, and memory loss. His health went unattended because he did not have health insurance and could not be seen at the Department of Veterans Affairs (VA) Hospital, Charleston, SC. His aim is to have his discharge upgraded to honorable. He has lived and learned; if he could, he would go back and redo or change the way he did some things. 3. The applicant provides: * his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * six statements of support * SC Arrest Record, dated 22 January 2015 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 was inducted into the Army of the United States on 3 December 1968. He completed BCT and on 15 February 1969 he was assigned for AIT to Fort Leonard Wood, MO. 3. On 11 April 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for falsely pretending to have lost a military identification (ID) card, wrongfully and unlawfully obtaining an application for a new ID card, and attempting to obtain a second ID card. 4. On 22 May 1969, he was assigned to the 547th Engineer Battalion, Germany. 5. On 2 September 1969, he received NJP under the provisions of Article 15, UCMJ, for being disorderly in a public place in Germany. 6. On 23 October 1969, he was promoted to the rank/grade of specialist four (SP4)/E-4. On 26 May 1970, he was promoted to specialist five (SP5)/E-5. 7. On 8 February 1971, he was convicted by a special court-martial of one specification of unlawfully killing another Soldier by operating an unsafe vehicle in a negligent manner and having prior knowledge of the unsafe condition of the vehicle. He was sentenced to forfeiture of $600, reduction to private first class (PFC)/E-3, and extra duty not to exceed 45 days. 8. On 15 March 1971, a bar to reenlistment was placed against him based on his record of NJP, conviction by a court-martial, and his unsatisfactory conduct and efficiency ratings. 9. On 19 March 1971, he was convicted by a special court-martial of one specification each of: * committing an assault on PFC RP by unlawfully and wrongfully striking him in the face and body with his shod feet * stealing U.S. currency from PFC RP, by means of force and violence, putting him in fear 10. He was sentenced to a confinement for 5 months, forfeiture of pay per month for 5 months, and reduction to private/E-1. He was confined at the U.S. Forces Confinement Facility, Mannheim, Germany. 11. On 17 May 1971, the Commander (CDR), 547th Engineer Battalion, forwarded to the CDR, U.S. Forces Confinement Facility additional charges against the applicant based on a U.S. Army Criminal Investigation Command (CID) investigation report. The CID report stated an investigation found the applicant (and two other Soldiers) committed aggravated assault and robbery against PFC WV. The CDR stated while in his unit the applicant was twice tried by a special court-martial. It was recommend the CDR, U.S. Forces Confinement Facility, consider a trial by special court-martial empowered to adjudge a bad conduct discharge for the applicant based on the seriousness of the enclosed charges. 12. The specific facts and circumstances surrounding his discharge processing are not available for review with this case; however, it appears court-martial charges were subsequently filed against him and he requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of a trial by court-martial. On 19 August 1971, he was released from the U.S. Forces Confinement Facility and assigned to Fort Dix, NJ, for discharge processing. 13. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 - for the good of the service in lieu of trial by court-martial (separation program number (SPN) 246), with an under other than honorable conditions characterization of service. He completed 2 years, 3 months, and 18 days of total active service with 150 days (or 5 months) of lost time due to being in confinement. 14. On 29 June 1973 and 17 November 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and equitable. 15. The applicant provides six statements of support, dated between 16 December 2014 and 16 January 2015, wherein several friends, a former instructor, and his pastor all stated they had known him between 4 and 20 years and found him to be very active in his church, honest, a team player, and loved by all. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. The member would be advised of the procedures and rights available to him, the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. a. 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. b. 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: 1. The applicant's record is void of the specific facts and circumstances surrounding his discharge processing. However, the available evidence shows during his service he received NJP on two separate occasions and was convicted by special courts-martial on two additional occasions. In addition, it appears he was subsequently charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial. 2. It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In the absence of evidence to the contrary, it is also presumed his separation processing 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 reason for separation were appropriate considering all the facts of the case. 3. Although his post-service conduct may be noteworthy, after a review of his record of service, it is clear his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009508 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009508 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2