BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150013682 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 BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150013682 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. BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150013682 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 (UOTHC) discharge to an honorable discharge (HD) or a general discharge (GD) and a change of his narrative reason for separation. 2. The applicant states he was going through family problems and he started drinking. At the time, he did not understand what his discharge meant and does not want to die with this type of discharge in his record. 3. It was recently reported that the applicant died on 21 September 2016. The request is now being considered in the interest of the deceased applicant’s family. 4. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 293 (Application for the Review of Discharge from the Armed * Forces of the United States) * Army Good Conduct Medal Certificate * Honorable Discharge Certificate, undated * Certificate from the Board of Education, Newark, NJ, dated 15 June 1977 * Certificate of Progress from Temple University, dated 6 February 1981 * Certificate of Graduation from the Non Commissioned Officer Academy, dated 3 July 1981 * Disabled American Veterans Certificate, Citation of Merit, dated 1 June 1983 * Western Truck Driving School Certificate, dated 19 June 1992 * Letter of employment from 12 May 1995 to 6 November 1996 * Order of Masons Certificate of Appreciation, dated 15 December 2007, and photograph * Certificate of Training, M & G Electronics, dated 31 March 2009 * Certificate of Recognition from M & G Electronics Corporation for “Employee of the Month” * Letter of reference from Camp Powhatan, Blue Ridge Mountains Council, Boy Scouts of America, Hiwassee, VA, undated * Certificate of Training from the Army for successful completion of the Basic Skills Education Program, 160 hours * Excellence Certificate of Achievement from the Marriott Culinary Food and Beverage Skills, undated 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. A certification of military service shows he had honorable service from 22 January 1978 to 27 July 1981. His DD Form 214 shows service from 22 January 1979 to 10 February 1984 with an immediate reenlistment on 28 July 1981. 3. On 5 January 1983, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for indebtedness in the amount of $320. He received a reduction in rank to private first class/E-3 (suspended), extra duty, and restriction for 14 days. 4. On 7 June 1983, the applicant received a letter of reprimand from his commanding officer for his involvement in the use of drugs as evidenced by his positive urinalysis test on a unit sweep on 2 May 1983. 5. On 9 December 1983, the applicant turned down an NJP under the provisions of Article 15 of the UCMJ for intent to defraud and for the procurement of lawful currency by wrongfully and unlawfully writing eight checks with insufficient funds (in his account) and demanded trial by court-martial. 6. A DD Form 458 (Charge Sheet), dated 10 January 1984, shows he was charged with writing eight checks with insufficient funds from 10 to 28 November 1983. 7. On 23 January 1984, after consulting with counsel, he requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged: * he understood the elements of the offense charged and was guilty of the charge against him or a lesser included offense which also authorized imposition of a bad conduct or dishonorable discharge * under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service * if his request was accepted, he could receive an UOTHC discharge * as a result of an UOTHC discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge 8. On 23 January 1984, his chain of command recommended he be discharged for the good of the service with the issuance of a UOTHC discharge. 9. On 23 January 1984, the conveying authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of a UOTHC discharge, and reduction to the lowest enlisted grade, unless already serving in that grade. He was discharged accordingly on 10 February 1984. 10. There is no evidence in his service record which shows he sought assistance from his chain of command for issues involving family issues, or that he notified his chain of command that his disciplinary problems were a result of these issues. 11. 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. REFERENCES: 1. 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 at any time after the charges have been preferred. An UOTHC discharge is normally considered appropriate. b. Paragraph 3-7a states that an HD is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states that a GD 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 HD. DISCUSSION: 1. The applicant contends that he had family problems and that he started drinking as a result of these problems; however, there is no evidence in his service record which shows he sought assistance from his chain of command for family issues, or that he notified his chain of command that his disciplinary problems were a result of these issues. 2. He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 3. His separation was in compliance with applicable regulations; there is no evidence of procedural or administrative errors which would have jeopardized his rights. The type of discharge directed was appropriate and there is no evidence of an error or injustice in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013682 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013682 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2