IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150008773 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150008773 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. IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150008773 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 to a general discharge. 2. The applicant states: a. He was stationed in Germany from 1989 to 1991. After returning to Germany following a deployment for Desert Storm many Soldiers were confused and a little wary of being back. He was a little scared as he was just a 21-year old kid who had been through so much. He was accused of stealing a battalion member's fuel stamps. From the start he was guilty in the eyes of his superiors. At the time he did not know that the fuel stamps were stolen property. He found the coupons out in the formation field and thought that his friend could use them. He didn't even own a car so he didn't realize what he was doing was wrong. He accepted the discharge because a sergeant and lieutenant threatened him with a court-martial if he didn't agree to the discharge. The lieutenant even pushed him against the wall and threatened him with military prison. He feels that he was bullied into accepting the discharge he received. At the time he didn't realize the affect it would have on his life because he was just a young man. b. He was a good Soldier and did what was requested of him. He was promoted to pay grade E-4 and field promoted to pay grade E-5 during Desert Storm. He was never promoted further upon returning from Germany because of the coupon incident. However, he felt proud when he received his stripes in a small ceremony in the middle of the desert so many years ago. He was stripped of his rank in 1991 and made to "wear dress wear to formation." The sergeant major who escorted him to the airport stated, "I wish you could have stuck it out because I didn't know how they could possibly find you guilty of all this, but I understand why you are leaving." c. He attempted to upgrade his discharge in 1995, but he never received a response. He began attending church about a year ago. He is currently 1-year alcohol free and moving forward. He has become friends with the reported victim who can't believe he has an under other than honorable conditions discharge. He has a wonderful wife and between them they have seven grandchildren. His oldest son is a U.S. Marine. He has and currently lives a decent life, other than his health. He is a good man and loves his country. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a character letter. 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 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 insufficient bases to waive the statute of limitations. 2. He enlisted in the Regular Army on 12 October 1988. He held military occupational specialty 19K (M1 Abrams Armor Crewman). He was promoted to pay grade E-3 on 1 September 1989, the highest grade he satisfactorily held. 3. He served in Germany from 14 February 1989 through 5 October 1991 and in Saudi Arabia from 30 December 1990 through 20 March 1991. 4. His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain: a. A Request for Discharge for the Good of the Service memorandum, dated 12 September 1991, in which after consulting with counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, for larceny and solicitation of another to make a false statement. He acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person. He also acknowledged the imposition of an under other than honorable conditions discharge and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. b. A Request for Discharge for the Good of the Service memorandum, dated 20 September 1991, in which his battalion commander recommended approval of his request and the issuance of an under other than honorable conditions discharge. c. A Request for Discharge for the Good of the Service memorandum, dated 26 September 1991, in which the separation authority approved the applicant's discharge and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1. 5. He was discharged accordingly on 8 October 1991. He was credited with completing 2 years, 11 months, and 27 days of net active service. His service was characterized as under other than honorable conditions. 6. He provides a character letter, dated 15 March 2014, in which the applicant's former section leader stated he knew the applicant was accused of stealing some fuel stamps, but the applicant was never prosecuted nor formally charged for a crime. Before the applicant's discharge the applicant told him that he was innocent, but he was being pressured and bullied by officers and noncommissioned officers of the unit with hard time in Leavenworth. He believes the applicant accepted the chapter discharge to get away from the accusations. He doesn't believe the applicant was guilty of a crime, just of being scared. 7. There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitation for an upgrade of his discharge. REFERENCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must include the individual’s admission of guilt. The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 3-7a – provides 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 – provides a general discharge was 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: 1. The applicant's record is void of the complete facts and circumstances surrounding his discharge; however, it appears after charges were preferred against him and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial. 2. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would support an upgrade of his discharge. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. 3. Without evidence to the contrary it must be presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008773 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008773 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2