IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150012402 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: 23 August 2016 DOCKET NUMBER: AR20150012402 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 to amend the decision of the ABCMR set forth in Docket Number AR20090010867 on 3 December 2009. ____________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: 23 August 2016 DOCKET NUMBER: AR20150012402 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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * he believes his record is unjust based on the fact that he received no legal representation * he believes the record is in error based on the fact that when he inquired about reenlisting, he received a negative response * he was informed that the discharge would get him out of the Army expeditiously * he believes the record is unjust because he was 32 days short of his expiration of term of service date * he was not represented by the Staff Judge Advocate, which every Soldier is afforded * he was also discriminated against 3. The applicant provides a self-authored statement and 7 statements of support. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090010867 on 3 December 2009. 2. The applicant enlisted in the Regular Army for 3 years on 1 August 1978. He was trained in and held military occupational specialty (MOS) 31V (Tactical Communications Systems Operator/Maintainer). 3. On 18 December 1978, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana. 4. Following completion of MOS training, he was reassigned to the 2nd Battalion, 32nd Infantry Regiment, Fort Ord, CA. He attained the rank/grade of specialist four/E-4. 5. On 20 August 1980, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. He was reduced to the rank of private first class/E-3. 6. On 4 March 1981, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct. The commander stated the applicant had been continually counseled by his chain of command but showed no improvement despite correctional and disciplinary action. Although he indicated a desire to remain in the Army, he did not act in accordance with his expressed wishes. He was provided a copy of this bar, but elected not to submit a statement in his own behalf. 7. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, his record contains the following documents: a. Orders 122-414, issued by Headquarters, 7th Infantry Division, Fort Ord, dated 17 June 1981, assigned him to the U.S. Army Separation Transfer Point, effective 23 June 1981, in the rank of private, for the purpose of separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). b. A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 23 June 1981 under the provisions of chapter 10 of AR 635-200, 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 2 years, 10 months, and 18 days of creditable active service and he had lost time from 2 to 3 May 1981 and from 8 to 10 May 1981. 8. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 9. He provides multiple letters of support from various individuals who essentially state: * the applicant is a good friend and citizen who has regretted his actions at the time * he is a loyal friend, a professional, and an inspiration to others * he embodies competence and remains technically skilled at whatever he does * racism and discrimination existed at the time of his service REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states 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 states 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 voluntary discharge. However, his record contains a DD Form 214 that shows he was discharged on 23 June 1981 under the provisions of chapter 10 of AR 635-200, in lieu of a court-martial. 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. 2. 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. The character reference letters he provides speak highly of him. However, none address his in-service performance, conduct, and efficiency, or the offense that led to his voluntary request for discharge. 4. It is unclear what the applicant means when he contends that he did not receive legal representation. A chapter 10 is an administrative separation that can only be initiated by the member and only after consulting with counsel. Additionally, the applicant was ineligible to reenlist because there was a bar to reenlistment imposed against him. 5. 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 and does not qualify him for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012402 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012402 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2