BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160002299 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: 24 August 2017 DOCKET NUMBER: AR20160002299 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: 24 August 2017 DOCKET NUMBER: AR20160002299 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 (UOTHC) discharge. 2. The applicant states, in effect, during his military service he was lied to, passed off (presumably to other organizations and officials), and unjustly targeted for reasons that were beyond his control. 3. The applicant provides no documentary evidence in support of his application. 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 U.S. Army Reserve on 25 January 1978 for a period of 8 years. He further enlisted in the Regular Army and entered active duty on 28 November 1978 for a period of 3 years. 3. A review of his military personnel records shows he was reported: * absent without leave (AWOL) from 28 November 1978 through 23 January 1980 * confined by civil authorities (CCA) from 24 January 1980 through 2 June 1980 * AWOL from 3 June 1980 through 24 October 1980 * returned to military control on 25 October 1980 and assigned to the U.S. Army Personnel Control Facility, Fort Ord, CA, through 9 September 1981 * AWOL from 10 September 1981 through 13 July 1983 * CCA from 14 July 1983 through 7 November 1983 4. A Superior Court of the State of California, Minute Order: Probation, filed 30 August 1983, and Municipal Court for the Oakland–Piedmont Judicial District, County of Alameda, State of California, Complaint, filed 5 August 1983, show the applicant was convicted: * on 2 March 1979, of grand theft and he served a term in the State prison * on 2 September 1981, of assault with a deadly weapon and served a term in the State prison a. On 15 July 1983, he was charged with attempted robbery and use of a deadly/dangerous weapon (i.e., a knife), on or about 14 July 1983. b. On 2 August 1983, he pled guilty to attempted robbery. The imposition of sentence was suspended for the period of one (1) year subject to him serving the first one (1) year of the probationary period in the Alameda County Jail. 5. On 28 July 1983, the applicant's commander sent notification to the applicant that he was recommending him for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), section II, paragraph 14-5, based on conviction by civil court. The notice informed the applicant of his rights and the separation procedures involved. It also shows the commander informed him that he was recommending the issuance of an UOTHC discharge. a. A United States Postal Service Form 3811 (Return Receipt, Registered, Insured, and Certified Mail) and supporting documents show the notification of separation was delivered to the applicant on 8 August 1983. b. On 20 September 1983, the Assistant Adjutant, U.S. Army Personnel Control Facility, 7th Infantry Division, Fort Ord, CA, documented that a response to the notification of separation was not received from the applicant. 6. On 26 September 1983, the commander recommended approval of the applicant's discharge. The chain of command also recommended approval of the discharge action. a. On 28 September 1983, the Assistant Adjutant, U.S. Army Personnel Control Facility, 7th Infantry Division, Fort Ord, CA, forwarded the separation packet to the Staff Judge Advocate (SJA) for legal review. b. On 3 October 1983, the Chief, Administrative Law, SJA, Fort Ord, CA, noted that the time for the applicant's appeal (of his civil conviction) did not expire until 15 October 1983. He advised the separation packet be held in abeyance until the applicant responded in writing indicating that he did not intend to appeal or until the time an appeal may be made has expired, whichever is earlier. 7. On 19 October 1983, the separation authority approved the recommendation for discharge of the applicant, reduced him to the lowest enlisted grade (E-1), and directed discharge UP AR 635-200, chapter 14, section II, with an UOTHC. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 7 November 1983 UP AR 635-200, chapter 14, section II, based on civil conviction with service characterized as UOTHC. a. He completed 10 months and 16 days of active service during this period. b. He had time lost from 28 November 1978 through 24 October 1980 and from 10 September 1981 through 7 November 1983. 9. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. a. Chapter 3, 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. Chapter 3, 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. DISCUSSION: 1. The applicant contends his UOTHC discharge should be upgraded because he was lied to, passed off, and unjustly targeted for reasons that were beyond his control. However, the applicant provides no details or documentary evidence in support of his contentions. 2. The applicant's administrative discharge UP AR 635-200, chapter 14, based on conviction by a civil court was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason for and type of discharge directed were appropriate and equitable. 3. The evidence of record shows the applicant enlisted and entered active duty on 28 November 1978 and he was: * in an AWOL/CCA status from 28 November 1978 to 24 October 1980 * present for duty from 25 October 1980 to 9 September 1981 * in an AWOL/CCA status from 10 September 1981 to 7 November 1983 (the date of his discharge) a. He was convicted of three (3) felony offenses for which he was CCA. b. He was discharged in the rank of private (E-1). c. He failed to complete 3-year active duty service obligation. d. The applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002299 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002299 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2