BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160000942 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: 6 June 2017 DOCKET NUMBER: AR20160000942 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: 6 June 2017 DOCKET NUMBER: AR20160000942 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 under other than honorable conditions (UOTHC) to a general discharge (GD). 2. The applicant states: a. He is 54 years old and he has a wife and three sons. He has been a plus to society since 1991. b. He has been employed at Chase Office Supplies since 2001 and he has been "moved up" to assistant manager. He has no health coverage and he needs help. c. His wife of 12 years is unemployed due to an unknown sickness. He is requesting an upgrade of his discharge due to his illness, which is in his hands and his hip. d. His family receives food stamps because what he earns is not enough to cover the household expenses and due to court documents, he is in the process of becoming homeless. It would hurt him to see his family in the street due to being homeless. 3. The applicant provides: * Civil Court of the City of New York Paperwork, dated 26 October 2015 * Chase Office Supplies LTD letter, dated 14 October 2015 * Supplemental Nutrition Assistance Notification, dated 29 July 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 June 1982 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 12 August 1980. 3. On 25 January 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possession of one ounce, more or less, of marijuana. His punishment consisted of reduction to E-2, forfeiture of $144.00, extra duty for 14 days, and restriction for 14 days. 4. The applicant's Charge Sheet is not available. However, his official record contains a Data Sheet, dated 9 June 1982, which shows that was being charged with three specifications of housebreaking, three specifications of larceny, and one specification of receipt of stolen property. 5. On 7 June 1982, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct discharge (BCD) or a dishonorable discharge (DD), the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him. 6. After consulting with counsel, the applicant submitted a request for 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. In his request for discharge, he acknowledged that: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood he could be discharged under other than honorable conditions (UOTHC) and furnished a UOTHC Certificate * he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge 7. The separation authority approved his request for discharge on 9 June 1982 and directed the issuance of a UOTHC Discharge Certificate and reduction to the lowest enlisted grade. 8. On 28 June 1982, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as UOTHC. He completed 1 year, 10 months, and 17 days of creditable active service. 9. A review of the available records failed to show the applicant ever applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations. 10. The applicant provided copies of a letter confirming his employment, supplemental assistance information, and his DD Form 214. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 HD or a GD is authorized, a discharge UOTHC would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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's contentions have been noted. His supporting evidence has been considered. However, his medical and monetary issues are not sufficiently mitigating to warrant the requested relief. 2. His records show he accepted NJP for possession of one ounce or more of marijuana. He had charges pending against him for numerous offenses that could have resulted in him receiving a BCD or a DD. He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial. Prior to his discharge he acknowledged that he understood the type of discharge he might receive. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 3. His post-service conduct and accomplishments are noted and are commendable. Post-service conduct alone is normally not a basis for upgrading a 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) AR20160000942 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000942 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2