BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150013707 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: 13 October 2016 DOCKET NUMBER: AR20150013707 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: 13 October 2016 DOCKET NUMBER: AR20150013707 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 a general, under honorable conditions discharge. 2. The applicant states that he was an exemplary Soldier until he was tempted into doing wrong and got caught by civilian law enforcement. He states his crime was not against the U.S. Army, although it was an embarrassment to him and his discharge was appropriate. He also states that the UOTHC discharge was harsh because it was based on one mistake during the period of his military service. He notes that he was awarded the Army Good Conduct Medal. He adds that he was not present for his "court-martial." 3. The applicant provides copies of his DA Form 4950 (Army Good Conduct Medal Certificate) and a Summary of Board Proceedings. 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 (RA) on 9 September 1981 for a period of 4 years. Upon completion of training he was: * awarded military occupational specialty (MOS) 63H (Track Vehicle Repairer) * promoted to specialist four (SPC)/pay grade E-4 on 1 September 1982 3. The applicant accepted nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 134, on 9 May 1983, for wrongfully having in his possession an unknown amount of residue of marihuana in the hashish form. 4. On 8 May 1985, he extended the period of his active duty service obligation by a period of 25 months, thereby establishing his expiration term of service as 8 October 1987. He was promoted to sergeant/pay grade E-5 on 1 October 1985. 5. A DA Form 4187 (Personnel Action) shows he was confined by civil authorities (CCA) on 25 January 1986. 6. Two Georgia, Superior Court of Liberty, Final Dispositions, ordered on 12 March 1986, show the applicant was found guilty of the felony offenses of Burglary and of Forgery in the Second Degree. He was sentenced to probation for ten (10) years and probation for five (5) years to run concurrently; fines in the amount of $2000 and $500; pay restitution in the amount of $102.50 within four (4) years on a scheduled basis; and to perform 132 hours of community service while he remained in the county. 7. On 20 May 1986, the applicant's commander notified him that he was recommending him for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), section II, based on conviction by civil court. The applicant was informed of his rights and the separation procedures involved. The commander also informed him that he was recommending the issuance of an UOTHC discharge. 8. On 20 May 1986, following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. a. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him. b. The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading his discharge. However, an act of consideration by either board did not imply that his discharge would be upgraded. c. He requested consideration of his case by an administrative separation board, personal appearance before an administrative separation board, and representation by counsel. d. He elected to submit statements in his own behalf and he submitted statements (identified as enclosures 9 through 15) that offered information pertaining to his previous military service. e. The applicant and his counsel placed their signatures on the document. 9. The applicant's chain of command recommended approval of the applicant's discharge. 10. Five DA Forms 4187 show he was: * absent without leave (AWOL) from 18 to 25 August 1986 * CCA from 8 September to 2 October 1986 11. A Summary of Proceedings shows the Board was appointed by the Commander, 24th Infantry Division (Mechanized), Fort Stewart, GA. The Board convened on 23 October 1986 and shows the persons present. Page 2 shows, "Sergeant [applicant] was present during all open sessions of the board with his counsel and was afforded full opportunity to cross-examination of adverse witnesses, to present evidence in his own behalf, and to testify in person or submit a written statement. a. The Board found the allegations in the notice of separation are supported by a preponderance of the evidence and also found the applicant undesirable for further retention in the service. b. The Board recommended the applicant be discharged from the service with an UOTHC discharge. c. The applicant acknowledged receipt of his board proceedings held on 23 October 1986. 12. The separation authority approved the recommendation for discharge of the applicant, reduced him to the lowest enlisted grade (E-1), and directed discharge under the provisions of Army Regulation 635-200, paragraph 14-5, with an under other than honorable conditions discharge. 13. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 18 November 1986 UP AR 635-200, chapter 14, section II, based on civilian conviction with service characterized as UOTHC. a. He had completed 5 years, 1 month, and 4 days of net active service during this period. b. It shows he was awarded the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and First Class (Sharpshooter) Marksmanship Qualification Badge with Grenade Bar. 14. A review of the applicant's military personnel records failed to reveal any evidence that the applicant was tried by court-martial. 15. A further review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the ADRB for review of his discharge within its 15-year statute of limitations. 16. In support of his application the applicant provides the following documents: a. A certificate that shows he was awarded the Army Good Conduct Medal for the period 9 September 1981 to 8 September 1984. b. A Summary of Proceedings convened on 23 October 1986 (summarized above). REFERENCES: AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. a. Chapter 3, 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. b. Chapter 3, 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 contends his UOTHC discharge should be upgraded because he was an exemplary Soldier until he apprehended by civil authorities and convicted for his offenses and the by civil court, he made only one mistake during the period of his military service, and the character of his service is unjust. 2. The evidence of record shows the applicant received NJP for possession of marihuana, was AWOL from 18 to 25 August 1986, was CCA from 8 September to 2 October 1986, and convicted by civil court for two felony offenses. The evidence of record fails to support his contention that he made only one mistake during the period of his military service. 3. The applicant's administrative discharge under the provisions of AR 635-200, chapter 14, based on conviction by civil court was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason for and type of discharge directed were appropriate and equitable. 4. An administrative separation board found the allegations in the notice of separation to the applicant were supported by a preponderance of the evidence. a. The Board recommended the applicant be discharged from the service with an UOTHC discharge. b. He was reduced to pay grade E-1 and he failed to complete his 6 year and 1 month active duty obligation. c. The applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel. Moreover, his service is characterized by his misconduct for which he was convicted by civil court and that led to the 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) AR20150013707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013707 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2