IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150011983 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: 26 July 2016 DOCKET NUMBER: AR20150011983 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: 26 July 2016 DOCKET NUMBER: AR20150011983 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 under other than honorable conditions discharge. 2. The applicant states he is requesting an upgrade of his discharge for health benefits and due to the passage of time. He was held beyond his expiration of term of service. He was court-martialed. He was dealing with a pregnant wife, newlywed stress, and adjustment. 3. The applicant provides three 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 the cases 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. 2. The applicant enlisted in the Regular Army on 14 June 1974 and he held military occupational specialty 76Y (Unit Supply Specialist). He was promoted to pay grade E-2 on 25 October 1974. 3. He was convicted and sentenced by a special court-martial on/for: a. 12 June 1975 – two specifications of wrongfully possessing marijuana on 1 February 1975 and 1 March 1975, one specification of making a false statement on 11 March 1975, and one specification of being absent without leave (AWOL) from 24 March 1975 through 23 April 1975. His sentence consisted of confinement at hard labor for 3 months and forfeiture of $120.00 per month for 4 months. The convening authority approved his sentence and ordered it executed on 29 July 1975. b. 17 November 1976 – one specification each of wrongfully appropriating the property of another Soldier, wrongfully possessing marijuana on 20 September 1976, being AWOL from 13 through 14 September 1976 and from 7 through 26 October 1976. He was sentenced to a reduction to pay grade E-1, a forfeiture of $75.00 pay month for 4 months, confinement at hard labor for 4 months, and a bad conduct discharge. The convening authority suspended the sentence to confinement and approved the remaining portion and ordered it executed on 23 December 1976. 4. He received nonjudicial punishment under Article 15, UCMJ, on/for: * 28 March 1977 – failing to go to at the time prescribed to his place of duty on 18 March 1977; his punishment consisted of a forfeiture of $25.00 pay for 2 months and 21 days of extra duty * 18 April 1977 – failing to go at the time prescribed to his place of duty on 25 and 29 March 1977; his punishment consisted of a forfeiture of $50.00 pay * 26 April 1977 – failing to go at the time prescribed to his place of duty on 25 April 1977; his punishment consisted of a forfeiture of $25.00 pay * 15 June 1977 – failing to go to at the time prescribed to his place of duty on 13 June 1977; his punishment consisted of a forfeiture of $50.00 5. A DD Form 458 (Charge Sheet), dated 25 August 1977, shows the applicant was charged with five specifications of uttering checks with intent to defraud. 6. On 17 November 1977, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He acknowledged that counsel fully advised him that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. He acknowledged that by requesting discharge in lieu of trial by court-martial, he was admitting guilt of the charges against him or a lesser included offense. He also acknowledged that he could be discharged under other than honorable conditions, furnished an Under Other Than Honorable Conditions Discharge Certificate, and the result of the issuance of such a discharge. He waived his rights and elected to submit a statement in his own behalf. He stated that if he were to be returned to duty he would be miserable and he wanted to get out. 7. In December 1977, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1. 8. Headquarters, 4th Infantry Division (Mechanized), Fort Carson, Co, Special Court-Martial Order Number 167, dated 16 December 1977, shows that after completion of all required post-trial and appellate reviews, the 17 November 1976 special court-martial was set aside by the U.S. Court of Military Appeals on 31 October 1977 by reason of the applicant's submission of a request for discharge under chapter 10, AR 635-200 on 17 November 1977. The convening authority approved the same on 16 December 1977. 9. He was discharged accordingly on 12 January 1978. He was credited with completing 3 years, 1 month, and 23 days of active service and 155 days of time lost. He was retained in service for 53 days for the convenience of the government. His service was characterized as under other than honorable conditions. 10. He provided three letters of support wherein the letters' authors attest to him appearing to be an amiable and motivated person and that he is in dire need of housing, healthcare, and employment. 11. On 4 May 1991, the Army Discharge Review Board denied his petition for an upgrade of his discharge. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – A member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must include the individual’s admission of guilt. The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant was charged and acknowledged he had committed an offense punishable under the UCMJ with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu by court-martial. He acknowledged that he could be furnished an under other than honorable conditions discharge. He waived his rights and stated he wanted to be separated. The separation authority approved his discharge and he was separated accordingly. The characterization of his service was commensurate with the reason for discharge. 2. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. His service did not rise to the level required for an honorable or a general discharge. 3. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits or due to the passage of time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011983 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011983 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2