IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010597 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: 12 May 2016 DOCKET NUMBER: AR20150010597 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: 12 May 2016 DOCKET NUMBER: AR20150010597 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 the Army knew that he had a problem with drugs and alcohol but did nothing to help him. He was good at his job down range. His company commander kept him in the field instead of helping him. When he was on post, he would get high and drunk. 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 6 December 1978 and he held military occupational specialty 11B (Infantryman). He served in Korea from March 1979 to March 1980. 3. He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 17 May 1979, wrongfully possessing an illegal drug (Oxaden) and being disorderly in public * 13 June 1979, willfully destroying government property and failing to go at the time prescribed to his appointed place of duty * 27 June 1979, being disorderly in public, willfully disobeying a lawful order and breaking restriction * 2 August 1979, failing to go at the time prescribed to his appointed place of duty and being disorderly 4. In Korea, his commander initiated a bar to reenlistment citing his repeated misconduct (drug possession, disorderly conduct, failure to repair, destruction of government property and breaking restriction). His commander provided him with a copy of the documents barring his reenlistment but he elected not to submit a statement. 5. Following completion of his overseas tour, he was reassigned him to Fort Lewis, WA. He then received additional NJPs under the provisions of Article 15 of the UCMJ on/for * 20 June 1980, assaulting another Soldier * 16 September 1980, unlawfully striking another Soldier on the head with a bottle, unlawfully striking a second Soldier on the face with his fist and willfully disobeying a lawful order 6. On 31 January 1981, military authorities placed him in pre-trial confinement at Fort Lewis. They released him from confinement on 13 February 1981. It appears that his command preferred court-martial charges against him for assault. 7. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain: a. Orders 48-774, issued by Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, WA, on 11 March 1981 reassigning him in the rank of private (E-1) to the U.S. Army Separation Transfer Point effective 18 March 1981 for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). b. A DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged on 18 March 1981 under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service – in lieu of court-martial, with a character of service of under other than honorable conditions. He completed 2 years, 3 months, and 13 days of creditable active service. 8. He enlisted in the U.S. Army Reserve on 14 January 1982. He entered active duty on 19 January 1982. The Army assigned him to Fort Sill, OK, for training. 9. On 20 May 1982, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct-fraudulent entry. He advised the applicant of his rights. 6. On 20 May 1982, the applicant acknowledged receipt of his commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge and of the procedures/rights that were available to him. Despite his ineligibility, he elected consideration of his case by a board of officers (separation board) and requested a personal appearance before a separation board and he elected to submit a statement in his own behalf. 7. In his statement, the applicant stated: * he learned self-discipline in the Army and he wanted to stay in but recognized that he made some mistakes * the unit placed him in Correctional Custody Facility following an assault incident and while there, he accidentally stepped over the line * a noncommissioned officer (NCO) grabbed him and he turned around in a quick reaction, he was accused him of trying to strike the NCO * he was referred to trial by a court-martial and the lawyer told him to accept a chapter 10 * he accepted the discharge and got out in March 1981 * he acknowledged he did not disclose his first enlistment and subsequent under other than honorable conditions discharge 8. Following this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct – fraudulent entry. His chain of command recommended approval of the discharge action. 9. On 18 June 1982 the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200. Accordingly, he was discharged on 25 June 1982. His DD Form 214 shows he was discharged due to fraudulent entry under the provisions of Army Regulation 635-200, chapter 14. 10. On 14 February 1983 at a personal hearing before the Army Discharge Review Board (ADRB), the ADRB reviewed his 1981 discharge processing and heard his testimony. The ADRB found his separation proper and equitable and denied his petition. REFERENCE: 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 under other than honorable conditions 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: 1. The applicant’s record is void of the complete facts and circumstances that led to his 1981 voluntary discharge. However, there is sufficient evidence to show his chain of command preferred court-martial charges against him for assault. Additionally, his record contains a DD Form 214 showing the Army discharged him on 18 March 1981 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. 3. There is a presumption that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He has not provided information that would indicate the contrary. Further, there is a presumption that the applicant’s discharge accurately reflects his overall record of service. 4. The applicant’s misconduct mainly occurred in Korea, although it continued throughout the remainder of his service. In the absence of evidence to the contrary, there is a presumption that his command provided him with counseling and rehabilitation but he failed. NJP for example is a tool available to commanders to correct a specific behavior. A bar to reenlistment is another example to place a Soldier on notice that his/her reenlistment in the Army is barred. 5. There is insufficient evidence to support upgrading his discharge. Based on his record of indiscipline his service does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010597 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010597 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2