BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017867 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: 4 April 2017 DOCKET NUMBER: AR20150017867 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: 4 April 2017 DOCKET NUMBER: AR20150017867 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 discharge to at least general under honorable conditions. 2. The applicant states he was supposed to receive an honorable discharge, but that did not happen. He did get into a fight with an officer, but it wasn't his fault; he was defending himself. During the court-martial, it was stated that he did not start it, so the court-martial was dropped. He needs this upgrade in order to receive help from the Department of Veterans Affairs (VA). 3. The applicant provides no supporting documents. 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. On 30 September 1972, the applicant enlisted in the Regular Army for 3 years. Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman) and assigned to Germany. 3. Between July 1973 and March 1974 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on seven different occasions for numerous offenses involving being disrespectful toward several different noncommissioned officers. 4. On 25 March 1974, court-martial charges were preferred against the applicant for violating Article 89, UCMJ, by being disrespectful toward and offering violence toward a commissioned officer and for violating Article 128, UCMJ, by assaulting a specialist four by punching him in the face and kicking him in the lower body. Later, an additional charge of possession of a switchblade knife was added. 5. The applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws c. He also: * acknowledged he understood that, if his request for discharge was accepted, he might be discharged with an Undesirable Discharge Certificate * indicated he would submit statements in his own behalf, but none are in the available record * signed the request along with his counsel 6. The staff judge advocate reviewed the applicant’s chain of command's unanimous recommendations for an undesirable discharge and concurred with that recommendation. 7. The separation authority, the Commander 2d Infantry Division, approved the applicant's request for discharge for the good of the service, reduced him to the lowest enlisted grade (E-1), and directed the issuance of an Undesirable Discharge Certificate. 8. A Headquarters, U.S. Army Personnel Center, Fort Jackson, South Carolina letter to the applicant, dated 11 July 1974, informed him the reason for his separation from active duty was, "UNSUITABILITY-BEHAVIOR DISORDERS." 9. The DD Form 214 (Report of Separation from Active Duty) located in the applicant's Military Personnel Record Jacket (MPRJ) shows he was honorably discharged on 11 July 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5B(2) with a separation program designator of JMB (Unsuitability-Personality Disorder). He had completed 1 year, 8 months, and 12 days of total active service during this period. 10. In his 11 November 1974 application to the Army Discharge Review Board (ADRB) the applicant wrote, “…The signature on the request for discharge was not mine. I refused to sign it and was told that 'it could be forged.'” “I never requested discharge.” 11. The ADRB's proceedings are not available, a letter, dated 17 March 1975, written to the applicant informed him the ADRB determined he had been properly and equitably discharged. REFERENCES: 1. Army Regulation 635-200 Enlisted Administrative Separations)sets forth the basic authority for the separation of enlisted personnel: a. Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, personality disorder, or apathy. Members separated under these provisions could receive either an honorable or general discharge. b. 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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. c. 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. A general discharge is a separation from the Army under honorable conditions. It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-5-1 (SPD Codes) is published and revised periodically to inform separation activities of pertinent codes that correspond to specific reasons/authorities for separation. The SPD code of JMB corresponds with Unsuitability - Personality Disorders. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides in paragraph 2-9 that he ABCMR begins its consideration of each case with the presumption of administrative regularity. DISCUSSION: 1. The applicant requests an upgrade of his discharge to at least general. 2. In accordance with the Board's presumption of administrative regularity the DD Form 214 in the applicant's MPRJ is considered to be valid. 3. The applicant was processed for an undesirable discharge under chapter 10, Army Regulation 635-200, and it is unclear why he received an honorable discharge due to unsuitability; however, it is the practice of this Board not disadvantage an applicant for having applied. 4. The applicant was issued an honorable discharge and he will be furnished a copy of this DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017867 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017867 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2