BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150016436 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: 23 March 2017 DOCKET NUMBER: AR20150016436 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: 23 March 2017 DOCKET NUMBER: AR20150016436 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 under other than honorable conditions discharge. 2. The applicant states, in effect, he is not sure the discharge was done right because they wanted him to reenlist, and the trouble started after that. He has not pursued a discharge upgrade before but wishes to pursue it now; he does not think it was done right. 3. The applicant provides no additional evidence in support of his request. 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 27 September 1972. 3. A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 3 November 1972, shows the applicant received nonjudicial punishment (NJP) as a trainee during his initial entry training period. He was punished for violating Article 134, UCMJ, by failing to obey a lawful order by consuming alcohol in the barracks on or about 2 November 1972. 4. The applicant completed his initial entry training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman). Following the completion of his initial entry training, he was reassigned to the 25th Infantry Division. 5. A DA Form 2627-1, dated 20 February 1973, shows the applicant received NJP for violating Article 97, UCMJ, by unlawfully confining four Soldiers in the latrine of a club on or about 27 January 1973. 6. A DA Form 2627-1, dated 10 October 1973, shows the applicant received NJP for violating Article 90, UCMJ (two counts), by disobeying lawful orders given by his superior officer on or about 4 October 1973. 7. Summary Court-Martial Order Number 9, issued by Headquarters, 1st Battalion, 8th Field Artillery Regiment on 11 October 1973, shows the applicant was found guilty of violating Article 11, UCMJ, by directing provoking words toward a noncommissioned officer. 8. A DA Form 2627-1, dated 16 October 1973, shows the applicant received NJP for violating Article 91, UCMJ, by disobeying the lawful order of his superior noncommissioned officer on or about 13 October 1973. 9. A DA Form 2627-1, dated 27 March 1974, shows the applicant received NJP for violating Article 86, UCMJ, by failing to be at his appointed place of duty on or about 25 March 1974. 10. A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 10 April 1974, shows the applicant was barred from reenlistment, based on his conviction by a summary court-martial and his receipt of NJP on 20 February 1973, 30 April 1973, and 10 October 1973. 11. A DA Form 2627-1, dated 24 May 1974, shows the applicant received NJP for violating Article 86, UCMJ, by failing to be at his appointed place of duty on or about 24 May 1974. 12. Summary Court-Martial Order Number 1, issued by Headquarters, 3rd Battalion (105 Forward), 13th Field Artillery Regiment on 7 February 1975, shows the applicant was found guilty of violating Article 92, UCMJ, by possessing marijuana on or about 22 October 1974. 13. The applicant was reassigned from Hawaii on or about 18 July 1975 by way of a permanent change of station (PCS). He was assigned to Fort Hood, TX, on or about 22 August 1975. 14. A DA Form 2627, dated 22 October 1975, shows the applicant received NJP for violating Article 86, UCMJ, by failing to go to his appointed place of duty on or about 22 October 1975. 15. A DA Form 2627, dated 3 November 1975, shows the applicant received NJP for violating Article 86, UCMJ (two counts), by failing to be at his appointed place of duty on or about 30 October 1975 and 1 November 1975. 16. A DA Form 2627, dated 6 February 1976, shows the applicant received NJP for violating Article 86, UCMJ (two counts), by failing to be at his appointed place of duty, and by being absent without leave (AWOL), from on or about 23 January 1976 to on or about 26 January 1976. 17. A DA Form 2627, dated 13 February 1976, shows the applicant received NJP for violating Article 91, UCMJ, by disobeying the lawful order of a senior noncommissioned officer on or about 4 February 1976. 18. A DA Form 458 (Charge Sheet), dated 1 June 1976, shows court-martial charges were preferred against the applicant for the following; * breaching the peace, on or about 1 May 1976 * breaking arrest, on or about 1 May 1976 * disobeying a lawful order, on or about 10 May 1976 * being AWOL, from on or about 19 February to on or about 22 March 1976 * being AWOL, from on or about 8 April to on or about 28 April 1976 * being AWOL, from on or about 3 May to on or about 10 May 1976 * being AWOL, from on or about 11 May to on or about 24 May 1976 19. The applicant consulted with legal counsel on 7 June 1976 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 undesirable discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 20. In his request for discharge, the applicant indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He declined to make a statement in his behalf. 21. The applicant's immediate commander recommended approval of the applicant's request for separation, on 9 June 1976, and recommended the issuance of an Undesirable Discharge Certificate. The applicant's battalion and brigade commanders endorsed his immediate commander's recommendation on 10 June 1976, by also recommending approval of the chapter 10, with the issuance of an Undesirable Discharge Certificate. 22. The separation authority approved the applicant's request for separation on 18 June 1976, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be issued an Undesirable Discharge Certificate. 23. The applicant was discharged from the Army on 6 August 1976. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his character of service was under other than honorable conditions. 24. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. 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. Consulting counsel would 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 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 an individual who was discharged for the good of the service. DISCUSSION: 1. The applicant received his first NJP while attending advanced individual training. Punishment under the UCMJ continued during his first duty station; additionally, he was barred from reenlisting and twice convicted by summary court-martial. In spite of the bar to reenlistment, he was allowed to PCS to Fort Hood, TX. 2. The applicant received additional NJP on at least four occasions after his arrival at Fort Hood. In addition, he went AWOL on three occasions totaling 77 days. 3. The applicant was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 4. The applicant's voluntary request for discharge to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. The characterization of service he received was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016436 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2