IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010948 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: 2 June 2016 DOCKET NUMBER: AR20150010948 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: 2 June 2016 DOCKET NUMBER: AR20150010948 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 from under other than honorable conditions discharge to under honorable conditions (general). 2. The applicant states he was an alcoholic, which was known by his superior officers and all his errors in judgement were made under the influence of alcohol. If he had been offered help at the time, he may have become a valuable asset to the Army. He further states he is a non-military related disabled person who has turned his life around; however, his military discharge is a hindrance to his future achievements. He takes full responsibly for his actions and asks for understanding. He is finally getting his life on track and a discharge upgrade would be a great benefit to that endeavor. 3. The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 September 1977 and 11 October 1977. 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 27 December 1976. He completed his initial entry training and was awarded military occupational specialty 52D (Power Generation Equipment Repairer). The highest rank/grade he attained while serving on active duty was private two/E-2. 3. The applicant's unit reported him absent without leave (AWOL) on 5 August 1977. He was dropped from the rolls of the Army on 3 September 1977. He surrendered to military authorities on or about 13 September 1977 and was assigned to the Personnel Control Facility, Fort Ord, California. 4. He accepted non-judicial punishment under the provisions of Article 15 of the UCMJ on the following three occasions: a. on 20 September 1977, for being AWOL from on or about 5 August 1977 through on or about 13 September 1977; b. on 30 September 1977, for failing to go at the time prescribed to his appointed place of duty, to wit: roving patrol on 24 September 1977; and c. on 11 October 1977, for violating a lawful general regulation: Army Regulation 210-65 (Installations-Alcoholic Beverages) by wrongfully having in his possession a bottle of an intoxicating beverage on or about 5 October 1977. 5. The applicant's unit reported him AWOL on 17 October 1977. He was returned to duty on 25 October 1977; it is unknown whether he surrendered or was apprehended by military authorities. 6. A warrant for his arrest was issued on 19 October 1977 by the Salinas, California Police Department, for felony auto theft. He was apprehended by military police on 24 November 1977 and taken to the Monterey County Jail, Salinas, California for civil charges. He was released back to military authorities on 28 November 1977, pending trial. 7. He underwent a mental status evaluation at the Silas B. Hays Army Hospital, Fort Ord, California. According to the report of that evaluation, dated 8 December 1977 and signed by the Clinical Director and Clinical Psychologist: a. The applicant was referred to the Community Mental Health Activity (CMHA) for evaluation by his command. b. The applicant met the retention standards in accordance with applicable Army regulations and has no mental disorder. c. The applicant was responsible for his actions and possessed the mental and emotional capacity to understand and participate in board and other legal proceedings. He was cleared by the CMHA for administrative action deemed appropriate by his command. d. It was not believed that the applicant was amenable to punishment, restraint or other form(s) of rehabilitation within the military. He was not motivated for further military service. 8. He was confined by military authorities on 9 December 1977. He was released without trial on 21 December 1977. 9. Special Court Martial-Order Number 36, issued by Headquarters, Headquarters Command, 7th Infantry Division and Fort Ord, Fort Ord, California on 30 December 1977, shows he pled guilty and was found guilty of one specification of being AWOL from on or about 5 August 1977 to on or about 13 September 1977 and one specification of being disrespectful to his superior noncommissioned officer on or about 12 October 1977. He was sentenced to confinement at hard labor for 15 days and to be reduced to the rank/grade of private/E-1. His sentence was adjudged on 9 December 1977. The approving authority approved the sentence on 30 December 1977. 10. His record indicates he was apprehended by the Salinas, California Sheriff's Department and held for disposition of charges (auto theft) and detained at the Monterey County Jail, Salinas, California on 19 January 1978. He was convicted of the charges against him by the Superior Court of California, County of Monterey, and he was sentenced to 120 days of confinement and 3 years of probation. 11. His commander notified him on or about 26 January 1978 that he was being considered for elimination under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), based on his civil conviction. His commander advised him of his right to: * appointment of military counsel to represent him and, in his absence, present his case before a board of officers * submit statements in his own behalf * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge 12. He requested his case be considered by a board of officers, elected to submit statements in his own behalf, and elected to be represented by counsel on 27 January 1978. He further stated he understood that a result of an issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and may expect to encounter substantial prejudice in civilian life. 13. His statement included the following: * he joined the Army in 1976 in hopes of being an MP (Military Policeman); at the time he had two years of college * he was instead assigned as a "grease monkey" and turned to alcohol * he had orders to Germany and went home on leave; his cousin was murdered and his father suffered a heart attack and was not expected to live * his leave extension was denied; thus, he went AWOL and eventually turned himself in * one weekend he stole a car in order to get back to base; however, he was caught and spent time in jail * he sought alcohol counseling while being incarcerated * he would like to stay in the Army but if not, he would like to be offered counseling for his alcohol problem 14. His commander recommended on 7 February 1978 that he be eliminated from the service under the provisions of Army Regulation 635-206. His reason was the applicant's civil conviction, 67 days of lost time, his military record of nonjudicial punishment and his civil confinement. 15. The applicant was notified to appear before a board of officers on 22 February 1978 under the provisions of Army Regulation 635-206 to determine if he should be discharged from the Army because of his civil confinement. 16. A board was convened at Fort Ord, California on 22 March 1978. The applicant did not appear; however, he was represented by counsel. The board found the applicant was undesirable for further retention because of his conviction by civil court. The board recommended he be discharged from the service because of misconduct with the issuance of an under other than honorable conditions discharge certificate. 17. The appropriate authority approved the board's recommendation, on 17 April 1978, for separation due to a civil court conviction and directed he be issued an under other than honorable conditions discharge certificate. 18. He was returned to military control on 17 April 1978. 19. The applicant was discharged on 3 May 1978, under the provisions of Army Regulation 635-206, by reason of his civil conviction. He was issued an Undesirable Discharge Certificate. He completed 11 months and 22 days of total active service that was characterized as under other than honorable conditions. His DD Form 214 also shows he had 135 days of lost time. 20. His record does not contain nor does he provide any evidence that he notified his chain of command of his alcohol problem and sought their assistance prior to his incarceration. 21. 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. REFERENCES: 1. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service. If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General. Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policies and procedures for the separation of enlisted personnel. 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 request for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) was carefully considered. 2. His record shows he was charged and convicted by a California civil court for stealing an automobile. He was sentenced to 120 days in confinement and 3 years of probation. Further, his military record reveals a number of offenses, to include AWOL, nonjudicial punishments, and a special court-martial conviction. 3. His chain of command initiated separation action against him and he was notified accordingly. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. His actions at the time clearly brought discredit upon himself and the Army. 4. He contends his alcohol problem was the reason for his misconduct and his chain of command was aware and did nothing to assist him. However, there is no evidence in his record and he does not provide evidence that shows his chain of command was negligent in their actions. There is a presumption of regularity in the conduct of government affairs. The applicant could have referred himself to the Army Alcohol and Drug Abuse Prevention and Control Program at the time. 5. He further contends an upgrade of his discharge would be of benefit to his future endeavors. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant did not submit any evidence that satisfies this requirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010948 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010948 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2