IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150012624 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: 9 August 2016 DOCKET NUMBER: AR20150012624 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: 9 August 2016 DOCKET NUMBER: AR20150012624 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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge. 2. The applicant states: a. He intended to make the Army his career. His civilian life before enlisting in the Army was exemplary with no issues with law enforcement in his community and his military service began the same. b. When he was assigned to duty in Germany, drugs and alcohol were readily available and a part of everyday military life. He fell into the peer pressure trap of drinking to fit in. Now he realizes that this was one of the worst decisions he ever made. c. While stationed in Germany on 3 and 4 December 1977, he received nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying an order from a sergeant (SGT) to go to bed, using inappropriate language, and being drunk and disorderly in quarters. He was reduced to private first class (PFC). d. He was sent to Walter Reed Army Medical Center because of an injury he received when he was stabbed in the hand by another Soldier. Despite his repeated requests no investigation was conducted and nothing was done to the Soldier who stabbed him. The stabbing left him traumatized and fearing for his life. e. While at Walter Reed he felt relief regarding his safety. However, his request to be reassigned to a different unit was denied. f. Also while at Walter Reed, he started using large quantities of medications for his hand and to ease his mind of the thoughts of having to return to his unit in Germany and face the Soldier who stabbed him. g. He received word that his uncle had died. His request for leave to attend the funeral was denied. He was very close to his uncle and this along with the denial to attend the funeral, denial of his request to transfer to another unit, safety issues, and being heavily medicated, contributed to a lapse in judgement and led to his going absent without leave (AWOL) until he was apprehended. h. On 9 April 2015, he learned of a written report in which Major (MAJ) R_______ C. W____ made several statements that were untrue. MAJ W___'s account of the stabbing, an NJP for fighting, and his (the applicant's) so-called request to be discharged from the Army are not true and accurate statements. i. His administrative discharge was not a valid discharge. His Commanding Officer, MAJ W____, made a recommendation on his own initiative, apart from an administrative discharge board, to discharge him UOTHC because he felt that he could not be a good Soldier and lacked rehabilitative potential. j. When a service member is given an administrative discharge he has the right to present his case before an administrative discharge board, to be represented by counsel, and to waive the above rights in writing. The service member must be given an opportunity to consult with counsel prior to waiving his rights. k. In his case, he was not afforded the right to present his case before an administrative discharge board, nor at any time did he waive his rights, or request on his own to be discharged from the Army. The record is very clear that the UOTHC discharge came from MAJ W____ and not from an administrative discharge board as required by statute and regulations. l. He was never informed of or received an explanation of the types of discharge certificates, the basis for their issuance, and the possible effects of the various certificates upon reenlistment, civilian employment, veterans benefits and related matters. m. Since he was not afforded the right and opportunity to present his case before an administrative discharge board as required by statute and regulations; he was denied the right to present mitigating factors such as his civilian life before enlistment, his military service prior to the infractions, his emotional and mental stability when the infractions occurred, and the reason why they occurred. n. Each of the Armed Forces must also assure that the purpose and scope of the Discharge Review Board and the Board for Correction of Military/Naval Records, established pursuant to Title 10, U. S. Code (USC) Sections 1552 and 1553, are explained during the separation processing of any member discharged UOTHC ("32 CFR [Code of Federal Regulations] 41.6(b)"). This process was never explained to him as evident from the record. o. His civilian life was exemplary before enlisting in the Army. He was a law abiding citizen who had no issues with law enforcement. He was also an upstanding individual in his community. His enlistment wasn't by pressure or guilt from others. It came from his own choice to freely and voluntarily enlist. His military service prior to the infractions was exemplary. He excelled in the duties assigned to him and was often top in his unit during military exercises. p. When MAJ W____ wrote the UOTHC recommendation he provided false information regarding the stabbing incident, the NJP for fighting, and the applicant's desire to be discharged. His military records are silent regarding the stabbing incident, except for his own testimony which is quite different from what MAJ W___ wrote in his recommendations. The NJP for fighting never happened and there is no record of him being involved in a fight. MAJ W____'s comments about him not being a good Soldier and lacking rehabilitative potential are completely false. q. Although required, he was never given written notice informing him that he wasn't entitled to VA benefits. r. It is quite clear from the record that errors were made in the denial of the applicant's rights to present his case before an administrative discharge board to determine the proper discharge for him. s. As MAJ W____ made the discharge determination on his own, apart from an administrative discharge board, and for his personal attacks upon the applicant's character, patriotism, and loyalty, the current UOTHC discharge should be vacated and upgraded to a general discharge. The applicant seeks a judicial review of all relevant matters pertaining to his discharge. 3. The applicant provides copies of – * a 19 December 1977 NJP * 1st Indorsement to his Request for Discharge for the Good of the Service * National Personnel Records Center letter, dated 9 April 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 24 July 1975. He held military occupational specialty 19E (Armor Crewman). 2. The applicant received NJP on 19 December 1977 for willfully disobeying a lawful order from his superior noncommissioned office (NCO), being disrespectful in language toward his superior NCO, and being drunk and disorderly in quarters. 3. On 29 September 1981, court-martial charges were preferred against the applicant for being AWOL from 5 October 1978 to 20 September 1981. 4. He consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged he understood the charges against him and admitted he was guilty of the offense which authorized a punitive discharge. He acknowledged he understood he might receive a discharge UOTHC, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge. He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will. He indicated he would not submit a statement in his own behalf. 5. His immediate commander, MAJ W____, recommended discharge UOTHC. He indicated he had personally interviewed the applicant and the applicant desired elimination under the provisions of AR 635-200, chapter 10. The applicant related: a. His AWOL was caused by personal and family problems. When he was denied leave to attend the funeral of his uncle who had died, he began to use large amounts of alcohol and various drugs. b. This led to him getting into trouble in his unit and his being involved in a fight with other members of his unit, resulting in his being stabbed in the left hand and losing the use of his index finger. He stated that he did not report the fight initially as he was afraid of being punished; however, when he was unable to perform his duties because of his injuries, he was given NJP and reduced from E-4 to E-3. He was sent from Germany to Walter Reed Hospital for surgery on his hand. He claimed that drugs were easily obtained while he was hospitalized and that he continued to use large quantities of drugs. c. After going on leave from Walter Reed, he decided he couldn't remain in the Army and be a good Soldier; therefore, he remained AWOL. On 20 September 1981, he was arrested in Florida and arrived at the Personnel Control Facility, Fort Bragg, North Carolina, on 29 September 1981. d. He was emphatic in his statement that he would not have returned had he not been arrested. He further stated that he would go AWOL again if not granted a discharge. 6. His chain of command recommended approval of his request for discharge with issuance of a UOTHC discharge. 7. On 29 October 1981 the separation authority approved the applicant’s personal discharge request and directed the issuance of a UOTHC discharge. 8. On 7 December 1981 he was accordingly discharged. He had completed 3 years and 5 months of net active duty service with time lost from 5 October 1978 to 23 July 1979 and from 24 July 1979 to 19 September 1981. 9. There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 provides 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, at the time an UOTHC characterization of service was 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. d. There are no provisions in chapter 10, AR 635-200, requiring an administrative discharge board for Soldiers processed under this chapter. 2. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ. The maximum punishment for AWOL is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to grade E-1, and a total forfeiture of all pay and allowances. DISCUSSION: 1. Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. Contrary to his assertions, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. His request for a chapter 10 discharge shows he wished to avoid a court-martial and the punitive discharge and confinement he might have received for his numerous UCMJ offenses. His service was appropriately characterized based on his misconduct. His extensive AWOL history (more than 2 years) rendered his service unsatisfactory and warranted a discharge UOTHC. He has provided no evidence indicating an injustice or an error occurred in the processing of his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012624 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012624 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2