BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150005614 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. 2. The applicant states: a. He would greatly appreciate receiving his rank back. While he was in the service, he did his job with the utmost respect for his country and fellow Soldiers. He made a very bad judgment and it cost him his career and the best opportunity he ever had. That was totally his fault. b. He got into trouble and was supposed to appear in court within 100 days. He had an appointment to appear in court on a Friday; however, the judge cancelled because of personal reasons. When he appeared the following Monday, he had failed to appear within 100 days by 1 day. He had violated the court order; the judge told him he could fight the charge but he would lose. He was told he could go home, so he chose to go home. He should have fought for his job and rank. c. He got into trouble while serving in the Republic of Korea. He was a country boy from Kentucky turned loose in another country. That's no excuse for what he did; he was a Soldier and should have conducted himself accordingly. d. He was discharged under honorable conditions in January 1988. He should have fought to stay in the Army and he should have made a career out of his service. That was his fault and he takes full responsibility for his actions. He was supposed to have his discharge upgraded within 90 days or 6 months after he got out; instead, he went to work and did not file for an upgrade. e. He would very much appreciate it if the Board would consider upgrading his discharge to honorable and restore his rank. He's truly sorry for his actions and takes full responsibility for what he did. He was and is still very proud to have been an American Soldier. 3. The applicant provides no additional evidence in support of his request. 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 enlisted in the Regular Army on 1 February 1984. After completing his initial entry training, he was awarded military occupational specialty 77F (Petroleum Supply Specialist). The highest rank/grade he attained while serving on active duty was specialist four/E-4. 3. He served in the Republic of Korea from on or about 18 December 1985 through on or about 26 January 1988. 4. He accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on at least 4 occasions between July 1986 and November 1987 for offenses that included making a false statement, larceny, assault, violating a lawful general regulation, failure to repair, and being drunk and disorderly. 5. Court-martial charges were preferred against him for the following charges and offenses: * 2 specifications of Charge I, violations of Article 86 of the UCMJ, for failure to repair * a single specification of Charge II, violation of Article 91 of the UCMJ, for disrespecting a noncommissioned officer (NCO) * 2 specifications of Charge III, violations of Article 95 of the UCMJ, for resisting apprehension and escaping custody * 2 specifications of Charge IV, violations of Article 128 of the UCMJ, for assaulting a Korean national and a U.S. service member * 4 specifications of Charge V, violations of Article 134 of the UCMJ, for breaking restriction (twice), forging a military pass, and dishonorably failing to pay a debt of $510.00 6. He consulted with legal counsel on 21 December 1987 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. 7. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate. He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 8. He elected to submit a statement in his own behalf; however, his statement is not available for review in this case. 9. Presumably, the separation authority approved his request for discharge and directed his reduction to the lowest enlisted rank/grade and directed that he be discharged under other than honorable conditions. 10. The applicant was discharged from the Army on 16 March 1988. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and his service characterization was under other than honorable conditions. 11. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. c. Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions is normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request. 2. His record shows he accepted NJP on at least 4 separate occasions and court-martial charges were preferred against him for numerous UCMJ violations. These violations were punishable under the UCMJ with a punitive discharge. Consequently, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. 3. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. The characterization of service he received accurately reflects his overall record of service. 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) AR20100014558 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005614 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1