BOARD DATE: 4 September 2014 DOCKET NUMBER: AR20140001772 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 an honorable discharge. 2. The applicant states: a. At the age of 21 years, while stationed at Fort Benning, GA, he began a relationship with a woman who was 11 years older than him. This relationship was new to him and progressed really fast. After knowing her for approximately 6 months, they got married and a week later he was given a permanent change of station to Germany. His wife arrived in Germany 6 months later and they immediately began having problems. b. He went to his commanding officer and asked if she could be sent back to Columbus, GA, as they were not getting along; this created a conflict with his ability to serve his country with all of the constant arguing and disagreements. His commander advised him that he could not just send her back based on his feelings. Things continued to spiral out of control. c. In 1984, while assigned to the 78th Maintenance Company, she made a false allegation against him that he had torn the hood off her coat. Because of the allegation made against him, he was charged with a court-martial offense. There was no charge against him of domestic violence or domestic abuse prior to this alleged incident. There were no witnesses to her allegation, but his chain of command upheld the charges she had filed against him, even though he had already requested that they send her back to the states. d. He retained a private attorney in Germany and was held 4 months past his expiration of term of service (ETS) date while they investigated the matter. He was a very young man and he did not have good legal counsel while he was stationed in a foreign country. In April 1985, his attorney advised that it would be better for him if he accepted the UOTHC discharge and go home, instead of going to trial. He was not aware of the impact this type of discharge would have on his future as a veteran because it was not explained to him. e. He served his country proudly for 8 years, 9 months, and 3 days with the intent of making it a career. If he had the opportunity to serve again, he would without question. He feels the matter held against him was an injustice or an inequity to his service. He feels his discharge decision was not fair and no consideration was made to all of the facts in the case. Therefore, he is requesting a review of his discharge and an upgrade to an honorable discharge, respectfully. f. He is currently employed at the Central Alabama Veterans Health Care System, in the Engineering Department as a motor vehicle operator, with a service computation date of 21 March 2001. He bought back his active duty time for the period of 20 July 1975 through 18 April 1985. This buyback has been paid in full (see Earnings and Leave Statement). 3. The applicant provides copies of the following: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letter from the Defense Finance and Accounting Service (DFAS) * Department of Veterans Affairs (VA) Earnings and Leave Statement 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army (RA) on 20 July 1976 for 4 years. At the time of his enlistment, he was 18 years and 3 months of age. He served in military occupational specialty 63S (Heavy Wheeled Vehicle Mechanic). He served in Germany from 23 November 1976 through 27 April 1979. 3. He reenlisted in the RA on 21 January 1980 for 3 years. He was promoted to pay grade E-5 on 10 May 1980. 4. A DD Form 1172 (Application for Uniformed Services Identification and Privilege Card), dated 1 April 1985, shows he married his spouse, Flora, on 1 January 1982. 5. He again served overseas in Germany from 12 January 1982 through 30 March 1985. 6. On 5 April 1983, a bar to his reenlistment was initiated for his failing to meet the requirements of his duty position and his off-duty performance as evidenced by his urine testing positive for marijuana. His company commander recommended the bar remain in effect until such time as he had proven himself to have corrected his substandard behavior. 7. On 11 April 1983, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order and being derelict in the performance of his duties on 24 March 1983. 8. On 2 May 1983, his bar to reenlistment was approved. 9. On 4 August 1983, he again accepted NJP under the provisions of Article 15 of the UCMJ, for willfully disobeying a lawful command from his superior commissioned officer on 21 July 1983. 10. Three DA Forms 2494 (Disposition Form) show the following actions being taken on: * 24 October 1983 - his company commander highly recommending the bar to reenlistment remain in effect * 22 January 1985 – notification of him being held passed his ETS date of 23 January 1985, due to pending UCMJ action against him; the reason for the NJP is not listed * 21 February 1985 – second notification of him being held beyond his ETS date of 23 January 1985, due to pending UCMJ action against him; the reason for the NJP is not listed * 22 February 1983 – court-martial charges being preferred against him 11. Two DA Forms 268 (Report for Suspension of Favorable Personnel Action) show he was notified of the following on: * 18 May 1984 – pending court-martial proceedings * 18 January 1985 – an investigation of his conduct had been started with a view of trial by court-martial 12. His record is void of the complete facts and circumstances pertaining to his discharge; however, his record contains Orders Number 98-422, issued by the 198th Personnel Service Company, 38th Personnel and Administration Battalion, Germany on 8 April 1985, which reassigned him to the Separation Transition Point for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation). 13. On 18 April 1985, he was discharged from the Army. The DD Form 214 he was issued shows he was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial. His service was characterized as UOTHC. He was credited with completing 8 years, 8 months, and 29 days of net active service. 14. He provides copies of the following: * a letter from DFAS, dated 9 January 2012, which advised him of DFAS' receipt and processing of his military service deposit request * VA Form 5632 (Earnings and Leave Statement), for the pay period ending 24 August 2013, which shows a payment of $1,563.96 for his military deposit 15. There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge. 16. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulations stated in: a. Chapter 10 - a Soldier, whose conduct subjected him or her to trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, could request a discharge for the good the service in lieu of a trial. The regulation required that there be no element of coercion involved in the submission of such a request and that the requesting Soldier be provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. A UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a - an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant's record is void of the facts and circumstances of his discharge; however, discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial. Soldiers were, and still are, provided counsel and advised of the reason for the discharge, the type of discharge they could receive and the results of the issuance of such a discharge, the rights available to them, and the effects of waiving those rights in discharge proceedings. 2. His contention that he was young at the time was also considered. He was 18 years and 3 months at the time of his initial enlistment and over 24 years of age when he reenlisted in 1980. There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service. 3. He provided no evidence or a convincing argument to show his discharge should be upgraded, and his military records contain no evidence which would entitle him to an upgrade of this discharge. Without evidence to the contrary, it is presumed that his administrative separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize his rights. The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge. 4. Therefore, he is not entitled to an upgrade of his discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X______ __X______ __X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20140001772 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140001772 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1