IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150003320 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: a. He has documentation which will hopefully shed light on the turn of events that created the situation that caused him to leave the military. Many years have passed and through his maturity he now realizes he had a great opportunity to serve the Nation. He hopes the Board will take this into account and allow him to show on paper that he served with pride, honor, and commitment to his country. Additionally, he wishes to be an example for his four children. He has a daughter who is currently serving in the U.S. Marine Corps. b. When he completed his service entry test, the instructor/recruiter was surprised at his score. The instructor told him that a high school graduate averaged about a "50" on the test and he had a "75" and had only completed the ninth grade. At boot camp he was placed in charge of the entire group's plane tickets and food vouchers and was a squad leader and assistant platoon leader. He was the best and quickest to tear down and reassemble the M-16 rifle. He received high marks in everything he did. c. During advanced individual training (AIT) he was in a "self progressive" class. His wife had purchased him a new pair of eyeglasses which were "tear-drop with the top half mirrored." His instructor was always telling him to remove his "sunglasses." Finally, he produced a copy of his vision report which upset the instructor. Shortly thereafter, the instructor advised him that he was going to take a test. He wasn't prepared to take it, which "was overriding the self progressed status of the class." d. He returned to his barracks at noon and crammed for the test. He dozed off while studying for the test and the instructor sent someone to get him. His instructor recommended he receive an Article 15 for missing a half day of school. He went to see the battalion commander and after reviewing his records the commander asked him why he was there. e. He began to explain the chain of events and the commander stopped him and stated with his record he shouldn’t be there. The commander set aside the Article 15 action. Upon returning to class, he learned he had the same instructor with whom he had a problem. He still remembers the double-take the instructor did and the firm dislike in his eyes when the instructor realized that he had not gotten rid of him. f. He completed his classes and went on to his permanent assignment. When it came time for his advancement to pay grade E-3 he opened his pay voucher and discovered a zero balance and his pay grade was shown as E-1. His first sergeant looked into the matter and discovered his AIT instructor had placed a letter in his financial records stating he was an E-1 and never should have been an E-2. He forfeited 6 months of E-2 pay and he lost his apartment. That is when he left the Army and received an UOTHC discharge. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. 2. The applicant enlisted in the Regular Army on 11 August 1978 and he held military occupational specialty 76D (material supply specialist). 3. In December 1978 while a student at Fort Lee, VA, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty (school) on 5 December 1978. His punishment included a forfeiture of $75.00 pay and 10 days of restriction and extra duty. 4. He was advanced to pay grade E-3 on 11 August 1979. 5. His record contains eight DA Forms 4187 (Personnel Action) showing on/for: * 22 September 1979 – being held in civil confinement for five counts of vehicle violations * 28 September 1979 – released from civil confinement after serving a sentence * 15 October 1979 – reported absent without leave (AWOL) from his unit * 4 November 1979 – apprehended by civil authorities and placed in confinement for failure to appear in court * 5 November 1979 – reported AWOL from his unit * 13 November 1979 – apprehended by military authorities and returned to duty * 13 November 1979 – reported AWOL pending disposition of charges from the previous AWOL and was dropped from the rolls of his organization * 29 January 1980 – apprehended by civil authorities, returned to military control, and pending disposition of military charges 6. On 7 February 1980, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Carson, CO. The applicant was charged with three specifications of being AWOL from 15 October through 4 November 1979, 5 through 13 November 1979, and 13 November 1979 through 19 January 1980. On the same day court-martial charges were preferred against him. 7. On 8 February 1980, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL. He requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel Administrative Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges preferred against him. He acknowledged that he could be discharged UOTHC and furnished an UOTHC Discharge Certificate and the result of the issuance of such a discharge. He waived his rights and elected to submit a statement in his own behalf. 8. In his statement, the applicant stated that he committed the offenses charged because his wife left him, he was reduced in rank for no reason, his immediate supervisor was hassling him, and finance kept screwing with his pay. He wanted out of the Army so he could get a job where he didn't have to worry about finances or being shipped out and having to leave his son behind. He also wanted to work somewhere where he could receive credit for his accomplishments. 9. On 12 February 1980, the applicant's unit commander was contacted and he recommended the applicant be court-martialed or eliminated from the service with an UOTHC discharge. 10. On 4 March 1980, the separation authority approved the applicant’s request and directed the issuance of an UOTHC discharge and reduction to pay grade E-1. 11. The applicant was discharged accordingly on 19 March 1980. He was credited with completing 1 year, 3 months and 29 days of active service and 102 days of time lost. His service was characterized as UOTHC. 12. 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. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states a Soldier whose conduct rendered him triable 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 by court-martial. The regulation required that there be no element of coercion involved in the submission of such a request and that the applicant be provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a UOTHC, 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. An UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service. b. An honorable discharge is separation with honor. The honorable characterization is 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. A general discharge is a separation from the Army under honorable conditions. 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 was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. He also had a history of violating civilian laws which resulted in his confinement by civil authorities. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He acknowledged he was guilty of the offenses charged and that he could be furnished an UOTHC Discharge Certificate. The separation authority approved his request and he was discharged accordingly. 2. Notwithstanding his contentions, the evidence shows his administrative discharge was accomplished in compliance with applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized his rights. His military record contains no evidence and he did not provide evidence to support an upgrade of his UOTHC discharge. His written arguments are insufficient to warrant upgrading 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) AR20150003320 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003320 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1