IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150007767 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 dishonorable discharge (i.e., under other than honorable conditions discharge). 2. The applicant states: * he was selected to be a member of the post basketball team and went to the club to celebrate his success * upon returning to his barracks room, he was stopped by military police and accused of smoking marijuana despite the absence of a drug test * he was served with an Article 15 and, despite his dissatisfaction, he was reduced and served his extra duty * he had been a good Soldier and performed the duties of squad leader * he felt let down and racially profiled by the country he swore to protect * he was given authorized leave which he found very strange as he had been just given an Article 15 * he went home to Detroit and did not return; one day the police arrested him and turned him over to the military * he was asked if he wanted out and, because of his disgruntled state, he agreed to the discharge * he is sorry for his actions; it has been 30 years since leaving the military and his discharge hindered his life and ambitions 3. The applicant does not provide any 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 enlisted in the Regular Army on 8 July 1980 and held military occupational specialty 76V (Material Storage and Handling Specialist). He was promoted to private/E-2 in January 1981 and private first class/E-3 in July 1981. 3. He was awarded or authorized the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 4. His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 10 July 1981 for disobeying a lawful order to not have females in the barracks room; his punishment consisted of a suspended reduction to private/E-1, forfeiture of pay, and extra duty and restriction (on 14 October 1981, the suspension of reduction to E-1 was vacated and ordered executed) * 20 October 1981, for wrongfully possessing marijuana; his punishment consisted of a forfeiture of pay and correctional custody 5. On 24 November 1981 he departed his Fort Sill unit in an absent without leave (AWOL) status, and on 29 December 1981 he was dropped from the Army rolls as a deserter. 6. He was apprehended by civil authorities in Detroit on 21 August 1982 and returned to military control on that date. 7. On 27 August 1982, he signed an admission of AWOL statement for administrative purposes. This statement shows: * he indicated he had been advised by his defense counsel that the Government had not received his records to obtain a conviction by a court-martial * he indicated he had been advised by his counsel that counsel could not completely advise him without his records * knowing all of this to be true, he waived all defenses that may have become known had his defense counsel been able to review his records * he willingly, knowingly, and voluntarily declared he was AWOL from 24 November 1981 to 21 August 1982 * he made the admission so he could process out of the Army and in doing so, he would receive an other than honorable conditions discharge * he acknowledged that counsel had explained to him the legal and social ramifications of his decision and what it means in the future * he understood that the Army could still (prior to discharge) prefer charges for any other military crimes pending against him 6. The complete facts surrounding the applicant’s discharge action are not available for review with this case. However, his record contains the following documents: a. DA Form 31 (Request and Authority for Leave), dated 1 September 1982, placing him on excess leave pending disposition of his discharge action. b. Orders 189-32, issued by Headquarters, U.S. Armor Center, Fort Knox, on 29 September 1982, reassigning him in the rank of private/E-1 to the U.S. Army Separation Transfer Point on or about 8 October 1982, for separation outprocessing and ordering his discharge from the Army effective that date. c. A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged in the grade of E-1 on 8 October 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions. This form also shows he completed 1 year, 6 months, and 4 days of creditable active service and he had lost time from 24 November 1981 to 20 August 1982. 7. There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation 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 under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a, 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, 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’s record shows he was discharged on 8 October 1982 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 2. The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by a court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 3. Contrary to his belief, the applicant was not given a dishonorable discharge. A Soldier is given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. He requested an administrative separation in lieu of a court-martial which may have adjudged a bad conduct or a dishonorable discharge. 4. Also contrary to his contention, the applicant's service was not exemplary. His records contain two instances of NJP, one of which was for possession of illegal drugs. Additionally, he was reduced to E-1 via his second Article 15 in October 1981. He did not hold the rank of E-3 at discharge as he believes. Finally, the Army does not upgrade a characterization of service due to the passage of time. 5. Based on his available record, his service is presumed not to have met the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, there is insufficient evidence upon which to upgrade his discharge to 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 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) AR20150007767 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007767 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1