IN THE CASE OF: BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150005403 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). 2. The applicant states: * there is no error or injustice – he wants his discharge upgraded to better himself * he did not have a father or mother while growing up * he lived by himself since he was 13 years old * he joined the Army for discipline and a place he could call home and family * he was young and did things he regrets * in the Army he learned brotherhood and respect * he was 21 years old, silly, and immature * he has accomplished so much in positive ways since his departure from the Army * he regrets not completing his full term in the Army * it would be different if he could do it over * he is very sorry for his old ways when he was younger 3. The applicant provides five character-reference statements. 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 on 12 December 1958. He enlisted in the Regular Army on 29 November 1978 for a period of 4 years. He completed his training and was awarded military occupational specialty 11B (infantryman). 3. On 27 June 1979, nonjudicial punishment was imposed against him for disobeying a lawful order. 4. On 25 June 1980, a bar to reenlistment was imposed against him. 5. His charge sheet is not available for review. However, records show he was charged with: * behaving with disrespect toward a commissioned officer (two specifications) * offering violence toward a commissioned officer * striking a commissioned officer * striking a noncommissioned officer * communicating threats (three specifications) * disobeying an order from a commissioned officer * disobeying three orders from noncommissioned officers * assaulting a noncommissioned officer * destroying property * choking a private first class * assaulting a private first class 6. On 11 December 1980, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected not to make a statement in his own behalf. 7. On 17 December 1980, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge UOTHC. 8. On 9 January 1981, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 1 month, and 11 days of creditable active service. His service was characterized as UOTHC. 9. In October 1997, the Army Discharge Review Board denied his request for a discharge upgrade. 10. He provided five character-reference statements from his pastor, employer, and friends who attest: * he is honest and dependable * he has been a great support to the church * he is reliable, dedicated, and externally upbeat * he is an involved parent * he is a positive role model in the community as well as in his personal life * he demonstrates stability, commitment, perseverance, and humility * he is a dedicated worker, friendly, helpful, and articulate 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. b. 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. c. 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 AND CONCLUSIONS: 1. The applicant contends he was young, silly, and immature. However, he was almost 20 years of age when he enlisted and he successfully completed training. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded. 3. His record of service included one nonjudicial punishment, a bar to reenlistment, and serious offenses for which court-martial charges were preferred against him. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. 4. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 5. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 6. In view of the foregoing evidence, there is an insufficient basis for granting the applicant an honorable or a general 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 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) AR20150005403 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005403 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1