BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160003278 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: 3 August 2017 DOCKET NUMBER: AR20160003278 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: 3 August 2017 DOCKET NUMBER: AR20160003278 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 discharge. He also requests a personal interview. 2. The applicant states he was convicted by civil court. He further explains the circumstances that led to his discharge as follows: a. Following his graduation from high school and at age 17, his mother co-signed for him to join the Army; many of his siblings had served in the military and he wanted to do the same. After completing training, he did well as a Soldier at different locations until he got stationed in Korea, where one night he and his friends went out drinking and got high on drugs. As it was close to curfew time, they tried to flag a taxi to get back to post but no one would stop. They jumped in front of a taxi but he refused to drive them, so one of his friends slashed the driver's throat. They were arrested by Military Police and charged with attempted murder; they were imprisoned and had separate lawyers. He agreed to admit guilt and pay monetary compensation to the victim's family. b. They flew him out of Korea to Fort Ord, CA, and although he was doing really well, he was having trouble with drugs which caused him to snap at people. He continued doing illegal drugs and started robbing stores and the next thing he knew, he was sentenced to 50 years in civilian prison. c. He struggled in prison as he had to prove his manhood, but he learned new skills, gained a college degree, and learned computer skills. He has since stopped drinking and/or doing illegal drugs, and has matured and improved his life. He has no family and he simply wants to get a fresh start in life; he feels he has a lot to offer. 3. The applicant provides no additional evidence. 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 was born in October 1956 and enlisted in the Arizona Army National Guard (AZARNG) at 17 years and 10 months old on 14 August 1974. 3. He entered active duty for training on 29 November 1974 and completed required training for award of military occupational specialty (MOS) 63H (Automotive Repairman). He was honorably released from active duty on 26 May 1975 and returned to State control. 4. He was honorably discharged from the AZARNG on 17 October 1976 and was ordered to active duty under the provisions of Title 10, U.S. Code, section 673a, on 18 October 1976. He was initially assigned to Fort Carson, CO. 5. He reenlisted in the Regular Army on 18 January 1978. He subsequently served in Korea from 25 March 1978 to 21 January 1979. 6. On 5 September 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for two specifications of ration control violation (purchasing Post Exchange merchandise in excess of what was authorized during June 1978). 7. On 21 September 1978, he again accepted NJP under the provisions of Article 15 of the UCMJ for two specifications of ration control violation (purchasing Post Exchange merchandise in excess of what was authorized during July 1978). 8. On 2 January 1979, the applicant was charged with robbery resulting in injuries in Seoul, Korea. The applicant and two other service members were riding in a Korean taxi when they robbed the driver of 15,000 won in cash and inflicted injuries that required 30 sutures. On the same date, the same three service members, while riding in another Korean taxi, robbed the driver of 10,000 won and inflicted injuries on him that required 13 sutures. He was confined on 22 January 1979 pending disposition of the charges. 9. On 21 May 1979, the applicant was tried in Seoul District Court. The court found him and the two other service members guilty and sentenced each member to a 4-year prison sentence. The applicant was placed in confinement at the Camp Humphreys Confinement Facility. The applicant elected not to appeal his conviction or sentence. He was transferred to the Suweon Correctional Institution on 8 June 1979. 10. On 28 June 1979, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for civil conviction in a foreign civilian court. The immediate commander advised the applicant of his rights. 11. On 29 June 1979, the applicant acknowledged receipt of the notification of separation action. He consulted with counsel and he was advised of the basis for the contemplated separation due to conviction by civil court, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a board of officers and appearance before a board of officers. He elected to submit a statement on his own behalf (his statement is not available with this case). He further acknowledged he understood that he could encounter substantial prejudice in civilian life in the event a general discharge was issued to him, and as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could encounter substantial prejudice in civilian life. 12. The applicant's immediate commander recommended the applicant's discharge from the Army in accordance with paragraph 14-18 of Army Regulation 635-200 due to his civil conviction. The intermediate commander recommended action be taken to refer the applicant's case to a board of officers. 13. The applicant was returned to the United States on or about 1 July 1979. He was assigned to Fort Ord, CA. 14. On 20 September 1979, the applicant again consulted with counsel. He was advised of the basis for the contemplated separation due to conviction by civil court, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He now waived consideration of his case by a board of officers and appearance before a board of officers. He elected not to submit a statement on his own behalf. He further acknowledged he understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could encounter substantial prejudice in civilian life. 15. On 20 September 1979, the applicant's defense counsel informed him that he had been scheduled to appear before a board of officers on 25 September 1979. However, he had signed a waiver of a board hearing. He was further informed that if a member waived his rights to board action, he may be issued an under other than honorable conditions discharge. The applicant certified that he was fully cognizant of the type of discharge he might receive. 16. On 5 November 1979, following coordination with the Department of the Army regarding the authority to discharge a service member who was convicted by a foreign court, the separation authority approved the discharge action and ordered the applicant discharged for misconduct by reason of civil conviction and directed his discharge be under other than honorable conditions. The applicant was accordingly discharged on 30 November 1979. 17. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service confirms he was discharged under the provisions of Army Regulation 635-200 with an under other than honorable conditions characterization of service. He completed 1 year, 4 months and 23 days of active service. This form also shows he had lost time as follows: 22 January to 7 June 1979, 8 June to 30 June 1979, 1 November to 4 November 1979, 8 November to 12 November 1979, and 15 November 1979. 18. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 provides the policies and procedures for the separation of enlisted personnel. a. Chapter 14 stipulates that a member may be considered for discharge when convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial or the sentence by civil authorities includes confinement for 6 months of more without regard to suspension or probation. Adjudication in juvenile proceedings includes adjudication as a juvenile. If separation action is initiated by the immediate commander, the case will be processed through the chain of command to the separation authority for appropriate action. a. Chapter 3 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 also 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. 2. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing (he requested an interview) before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record shows the applicant was convicted by a civilian court of the offense of robbery and/or bodily injury resulting from robbery. His conviction included 4 years of imprisonment. Accordingly, his chain of command initiated separation action against him and he was properly notified. He initially requested a board of officers and appearance before a board of officers. 3. Upon return to the United States, he waived consideration of his case by a board of officers and/or appearance before a board of officers. He further indicated that he did not intend to appeal his civil conviction. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. The applicant was 17 years and 10 months when he first enlisted in the AZARNG. However, he was 21 years of age when he reenlisted in the Regular Army and nearly 22 years of age when he committed his offense. In any case, there is no evidence that shows the applicant's misconduct was due to his age. 5. His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. Based on his record of misconduct, the separation authority determined the applicant's service did not rise to the level required for a general or an honorable 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) AR20160003278 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003278 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2