IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002749 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 IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002749 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. IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160002749 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, correction of his military records by showing his characterization of service was upgraded. 2. The applicant states, in effect, he served in the military for almost 4 years with no problems. He attended a course that would increase his opportunity for promotion to the rank of sergeant, pay grade E-5. One night he met some friends at a bar who needed a ride to the barracks. He had no idea they had mugged and robbed someone. He is now 61 years of age. That event was the only time in his life he was in the wrong place at the wrong time. He got court-martialed. He has done nothing else wrong in his life. Because of a fire, the only evidence he has to offer is a copy of orders. 3. The applicant provides a copy of Special Orders Number 351, U.S. Army, Europe and Seventh Army, dated 17 December 1974. 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 19 December 1972, the applicant enlisted in the Regular Army (RA). He completed initial training as an armor crewman. 3. The applicant was advanced to private, pay grade E-2 on 19 April 1973. On 13 May 1973 he was assigned duty in the Federal Republic of Germany. He was subsequently advanced to private first class, pay grade E-3 on 24 August 1973; and to specialist four, pay grade E-4 on 11 March 1974. 4. On 2 December 1974, the applicant accepted non-judicial punishment (NJP) for an unauthorized absence from his place of duty on the morning of 26 November 1974 and for an unauthorized absence from guard duty on 28 November 1974 from which he did not return until the afternoon of 30 November 1974. 5. The applicant was honorably discharged on 18 December 1974 for the purpose of immediate reenlistment. The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 2 years and 1 day of active creditable during this period. On 19 December 1974, he reenlisted in the RA in military occupational specialty 11E. 6. On 5 March 1975, the applicant accepted NJP for wrongfully and unlawfully leaving the scene of an accident, wherein he was the driver of a vehicle that was involved without making his identity known. 7. An AE Form 1107 (Bar to Enlistment/Reenlistment), dated 6 May 1974, states the company commander recommended the applicant be barred from reenlistment because he had failed to adhere to the advice of his superiors even after receiving repeated counseling. The applicant had continually shown a lack of self-discipline. His duty performance was substandard and he could not be trusted to accomplish a mission without direct supervision. The battalion commander concurred with the recommendation and it was approved by the brigade commander. 8. On 2 March 1976, the applicant accepted NJP for breaking restriction. 9. Special Court-Martial Orders Number 12, from 3rd Brigade, 8th Infantry Division, dated 16 June 1976, shows the applicant was convicted of violating: a. Article 92, for failure to obey a lawful order by operating a passenger car while his operator’s license was suspended; b. Article 111, for drunken driving; and c. Article 78, for accessory after the fact by driving three other Soldiers away to prevent their apprehension for a robbery he knew they had committed. 10. On 31 August 1976, the applicant accepted NJP for failing to go to his appointed place of duty (squadron guard). 11. On 29 September 1976, the applicant accepted NJP for being absent without leave from 2 to 20 September 1976 (18 days). 12. On 28 October 1976, the applicant’s commander initiated action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1), to eliminate the applicant from the military based on his misconduct. The applicant acknowledged receipt of this action and that he had been counseled regarding the type of discharge he could receive and the possible effect on him. 13. On 1 November 1976, the applicant’s squadron commander made the same recommendation as the applicant’s troop commander. 14. On 4 November 1976, the brigade commander initiated action to convene a board of officers to consider the applicant’s elimination for misconduct. 15. On 16 November 1976, after a review of the applicant’s bar to reenlistment it was concluded the bar should remain in effect. 16. On 18 November 1976, the applicant waived consideration of his case by a board of officers and an opportunity to appear before such board. He also elected not to submit a statement in his own behalf. 17. On 15 December 1976, the appropriate authority approved the recommendation for elimination due to a pattern of misconduct and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 18. Accordingly, on 7 January 1977, the applicant was discharged under conditions other than honorable. He completed 2 years and 1 day of active service and he had 18 days of lost time. REFERENCES: Army Regulation 635-200, as then in effect, provided in paragraph 13-5a(1) for the separation of individuals for unfitness due to frequent incidents of a discreditable nature. A DD Form 258A was normally issued. An under conditions other than honorable characterization was normal. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION: 1. The applicant contends that his military records should be corrected to show his characterization of service was upgraded because he served in the military almost 4 years with no problems. 2. The record shows the applicant accepted multiple NJPs, was barred from reenlistment, and was convicted by a special court-martial. His misconduct occurred over an extended period of time and clearly showed a pattern of misconduct. 3. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 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) AR20160002749 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002749 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2