IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011936 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: 12 July 2016 DOCKET NUMBER: AR20150011936 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: 12 July 2016 DOCKET NUMBER: AR20150011936 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, in effect, correction to his DD Form 214 (Report of Separation from Active Duty) to show he received a general discharge (GD) vice an under other than honorable conditions (UOTHC) discharge. 2. The applicant states: a. His discharge was inequitable because it was based on 7 days of being absent without leave (AWOL). He feels that his discharge was given without his company commander knowing that he had a drinking problem. b. He is proud to be an Army veteran, regardless of his discharge. He reenlisted because he wanted to serve his country and he is sorry for not having served more proudly. c. He would like to be given a second chance. He has worked as a correctional officer, educated himself in the ministry, and has not had a drink in over 40 years. 3. He provides a: * DD Form 214 * Certificate of License to Preach the Gospel, dated 2 June 1991 * letter from the Pecos Municipal Criminal Justice Center, dated 19 May 2015 * Institute of Biblical Studies Certificate * The Christian Ministry, Certificate of Ordination, dated 28 June 1992 * First Line Supervisor Training Certificate, dated 29 March 2005 * DA Form 2-1 (Personnel Qualification Record) 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 had prior honorable service from 14 November 1966 to 4 March 1974. During this period he received two nonjudical punishments (NJP’s): a. On 25 September 1973, for failing to pay his just debts to another Soldier in the sum of approximately $100.00. He was found guilty and received forfeitures of pay for 7 days and restriction for 14 days (suspended for 45 days); and b. On 13 November 1973, for being absent from his appointed place of duty on 11 October 1973. He was found guilty and received forfeitures of pay of $40.00. 3. On 5 March 1975, the applicant immediately reenlisted. 4. On 1 August 1975, he received NJP for being AWOL from his appointed place of duty on 18 July 1975. He was found guilty and received a reduction in pay grade to corporal (CPL)/E-4 (suspended for 6 months) and forfeitures of pay for $100.00 per month for one month. 5. On 16 October 1975, his suspension of punishment from his 1 August 1975 NJP was vacated due to information which was received by the applicant’s commander and was reduced to CPL/E-4. 6. On 29 November 1976, he received NJP for being AWOL from 16 November 1976 to 19 November 1976. He was found guilty and received a reduction in pay grade to private first class (PFC)/E-3, forfeitures of pay for $100.00 per month for one month, and extra duty for 14 days. 7. On 20 October 1977, he received NJP for being AWOL from 27 September 1977 to 30 September 1977, and for failure to go, at the time prescribed, to his appointed place of duty on 3 October 1977. He was found guilty and received a reduction in pay grade to PFC/E-3, forfeitures of pay for $100.00 per month for one month, and extra duty for 14 days. 8. On 19 January 1978, he received NJP for being AWOL from 31 December 1977 to 8 January 1978. He was found guilty and received a reduction in pay grade to the next lower grade of PFC/E-3 (suspended for 60 days), forfeitures of pay for $100.00 per month for one month, and extra duty for 14 days. 9. A DD Form 458 (Charge Sheet) shows the applicant was pending a court-martial for two specifications of being AWOL from 26 April 1978 to 24 May 1978 and from 20 June 1978 to 23 July 1978. 10. On 15 August 1978, the applicant consulted with counsel and 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 UOTHC discharge, and procedures and rights available to him. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. a. In his request for discharge, the applicant indicated he understood that by requesting discharge 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 was advised that he could submit a statement on his own behalf. Although he elected to submit a statement, none could be found in his record. b. On 13 September 1978, the separation authority approved his request for discharge and directed the issuance of an UOTHC discharge. c. On 29 September 1978, he was discharged accordingly. He completed a total of 11 years, 10 months and 9 days of total active service. His DD Form 214 shows: * item 9a (Type of Separation) – “DISCHARGE” * item 9c (Authority and Reason) – “ADMIN DISCHARGE CONDUCT TRIABLE BY COURT MARTIAL” * item 9e (Character of Service) – “UNDER OTHER THAN HONORABLE CONDITIONS” * item 21 (Time Lost) – “7 DAYS LOST” d. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 11. The applicant provides copies of his accomplishments post military service. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that 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 (GD) is authorized, a discharge UOTHC is normally considered appropriate. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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 honorable discharge. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. His 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 were appropriate considering all the facts of the case. 3. Every case is individually decided based upon its merits when an applicant requests a change in his discharge. Although his post-service conduct is commendable, there is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service to honorable or a GD. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011936 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011936 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2