BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150015631 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: 2 February 2017 DOCKET NUMBER: AR20150015631 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: 2 February 2017 DOCKET NUMBER: AR20150015631 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, an upgrade of his discharge under other than honorable conditions. 2. The applicant states he did not get a chance to explain his case. He was promoted to pay grade E-3 but never got the recognition. He thought that he was picked on due to his southern accent. He was in for 2 years and his conduct was good. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). 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 enlisted in the Regular Army on 1 October 1974. He completed training at Fort Sill, OK, and he was awarded military occupational specialty 13B (Cannon Crewman). 3. On 23 November 1974, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of military Justice (UCMJ) for failing to obey a lawful order by leaving his weapon unsecure. His punishment consisted of forfeiture of pay. 4. He was advanced to private (PV2)/pay grade E-2 on 1 February 1975. He was assigned to the 2nd Battalion, 2nd Field Artillery, at Fort Sill. While there, he accepted NJP on/for: * 10 October 1975, failing to go at the time prescribed to his appointed place of duty; his punishment consisted of forfeiture of pay and extra duty * 7 November 1975, failing to go at the time prescribed to his appointed place of duty; his punishment consisted in part of a suspended reduction to private (PVT)/E-1 * 20 November 1975, the suspension of punishment to E-1 was vacated and ordered executed 5. On 16 August 1976, he departed his unit in an absent without leave (AWOL) status. He returned to military control on 5 September 1976. 6. On 14 September 1976, he accepted NJP for being AWOL from 16 August to on or about 6 September 1976. His punishment consisted of reduction to PVT/E-1, forfeiture of pay, and extra duty. 7. On 4 November 1976, he again accepted NJP for failing to obey a lawful order. His punishment consisted of forfeiture of pay and extra duty. 8. On 14 March 1977, he accepted NJP for willfully disobeying a lawful command from a commissioned officer and failing to go at the time prescribed to his appointed place of duty. His punishment consisted of forfeiture of pay and extra duty. 9. On 31 March 1977, his commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct. The commander provided the applicant a copy of this bar but the applicant elected not to submit a statement on his own behalf. The bar was ultimately approved by the approval authority. 10. On 26 May 1977, the applicant departed his unit in an AWOL status, and on 27 June 1977, he was dropped from the Army rolls as a deserter. He was apprehended by civil authorities in Charleston, MS, and confined in Panola County Jail, Batesville, MS. He returned to military control on 27 July 1977. He was assigned to the Personnel Control Facility at Fort Knox, KY for disposition of the charges. 11. On 9 August 1977, the applicant's command preferred court-martial charges against him for one specification of AWOL from 26 May 1977 to on or about 28 July 1977. 12. On 17 August 1977, the applicant consulted with legal counsel who advised him of his rights. He was also advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, and the possible effects of a request for discharge. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Error! Hyperlink reference not valid.chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person; he did not desire any further rehabilitation under any circumstances and he had no desire to perform further service * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions * he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf 13. In his statement, the applicant stated the Army was not exactly what he expected. His recruiter had told him a few lies. He was going to stick it out but the situation changed from bad to worse. He did not have an attitude against the Army, just a few people in the Army. Before he went AWOL, he requested a transfer but found himself getting one NJP after another. 14. On 17 August 1977, the immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions characterization of service. The immediate commander opined that the applicant's conduct had rendered him triable by a court-martial empowered to adjudge a bad conduct or a dishonorable discharge. 15. On 30 August 1977, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service – in lieu of trial by a court-martial in accordance with AR 635-200, chapter 10. The separation authority directed the applicant’s reduction to the lowest enlisted grade, if applicable, and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 14 September 1977, the applicant was accordingly discharged. 16. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service – in lieu of trial by a court-martial with a discharge under other than honorable conditions. He completed 2 years, 8 months, and 22 days of service with multiple periods of lost time. His DD Form 214 also shows: * items 6a (Grade, Rate or Rank) and 4b (Pay Grade), PVT and E-1 * item 7 (Date of Rank), 14 September 1976 17. There is no indication he petitioned the Army Discharge Review Board for review of his discharge processing within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides for 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 or general discharge is authorized, an under other than honorable conditions discharge was considered appropriate at the time. a. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. 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. 2. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states: * items 6a and 6b show the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion and reduction orders * item 7 shows the effective date of pay grade DISCUSSION: 1. The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge in – lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 2. Following consultation with counsel, the applicant voluntarily submitted a request for discharge. He acknowledged that he had not been coerced into making this request. In his request, the applicant voluntarily chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge. He could have elected trial by a court-martial if he believed he was innocent of the charges. 3. His record of indiscipline which included multiple NJPs, a bar to reenlistment, two periods of AWOL, and court-martial charges. The separation authority determined his misconduct rendered his service unsatisfactory. 4. There is no evidence the applicant was promoted to E-3. But even if he had been, the regulation then in effect (and the one currently in effect) states that when a Soldier was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. Regardless of the applicant's rank at the time, once the separation authority approved his discharge, he also ordered his reduction to the lowest enlisted grade. Since he held the rank/grade of PVT/E-1 at the time of his discharge, his DD Form 214 correctly lists his rank/grade and effective date of pay grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015631 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015631 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2