IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150013846 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: 27 September 2016 DOCKET NUMBER: AR20150013846 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: 27 September 2016 DOCKET NUMBER: AR20150013846 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 characterization of service from under conditions other than honorable to under honorable conditions (general). 2. The applicant states, in effect: a. He did well in Basic Combat Training (BCT) and he watched as the drill instructors placed wagers and exchanged money on the outcome of athletic training events. While executing the confidence course, one of the drill instructors informed him that he was doing it wrong which resulted in his falling on his back. The drill instructor grabbed him, shouting obscenities and dragging him around until he collapsed to the ground. Eventually the drill instructor realized that something was wrong with the applicant and he informed the medics. b. The medics transported him to the hospital where he was treated for a broken back. After his release from the hospital, he was sent to Advanced Individual Training (AIT) with a medical profile that stated he was not to do anything. The next day in formation, the drill instructor asked if anyone had a medical profile. The applicant presented it to the drill instructor and he spit on it and tore it up. The drill instructor told him to get into formation for the morning run. After reminding the drill instructor about the profile, the drill instructor repeated his order and the applicant respectfully refused. The drill instructor threw the applicant to the ground, placed his boot on his head, and told him to crawl after the formation. The drill instructor ranted, raved, and ultimately restricted him to the barracks. c. The applicant continued to do some training while continuing to see doctors who gave him more profiles to no avail. He then visited with members of the Judge Advocate General's Corps who listened and assured him that they would take care of things, but nothing happened. d. He drew a cartoon of a black instructor and when it was discovered, the commanding officer accused him of being prejudiced. The applicant reminded him that the instructor was black so he drew him that way. His commander told him that if he did not pass the exam the following day he would be recycled. The applicant maxed the test and requested the cartoon back. The officer returned it and the applicant sent it to his mother. The applicant's unit transferred him to a holding company and he was confined to the headquarters. He was still in pain but only performed light duty. One day his commanding officer summoned him and tried to reason with him. He told the applicant a story about a friend of his who ruined his life by not conforming. e. He had seen doctors, lawyers, and priests who instructed him on his priorities, the Army, the United States, and God. His commanding officer asked him if he would be there the next day, but by dawn he was on his way to New Orleans. Someone robbed him when he was hitchhiking at the back gate and he spent several weeks away from his unit until his family turned him into the authorities. He spent time in the stockade/holding company at Fort Hood, TX, and subsequently reinjured his back, although he was told it was not serious. Given the option of returning to duty or an undesirable discharge which would automatically be upgraded to a general discharge over time, he determined that he had had enough and took the discharge and $10.00 dollars. f. His commanding officer was right: the discharge ruined his life. He couldn't hold a job, he lost his fiancé, and he would never be able to serve in the military. If the doctors at Fort Polk had looked further than his lower back, they would have found the crushed vertebrae in his neck, which has caused him pain the past 45 years. He has lost his family, siblings, and a son. Everything he owned was taken, and he now lives on welfare in Missouri. 3. The applicant provides no additional evidence. 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 was inducted into the Army of the United States on 19 February 1971. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 June 1971 for, being absent without leave (AWOL) from on or about 7 June to 14 June 1971. 4. His record contains: a. Standard Form 600 (Chronological Record of Medical Care), dated 2 June 1971, which shows the applicant had fallen 3 weeks ago and sustained a fracture to his right transverse process L4. His back pain was improving; however, he had struck his right lower back on the corner of a television set 3 days ago and now presented with limiting back pain as well as left ankle pain. It was noted the applicant desired to seek civilian care and he was counselled in reference to the prognosis of his injury. b. DD Form 3349 (Medical Condition – Physical Profile Record), dated 2 June 1971, which shows the applicant was medically qualified for duty with limitations for the temporary condition of a broken back. c. DD Form 458 (Charge Sheet), dated 17 December 1971, which shows court-martial charges were preferred against him for being AWOL from on or about 26 June to 8 December 1971. 5. On 11 January 1972, the applicant met with counsel and he voluntarily requested a discharge for under the provisions of Army Regulation 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 he could request a discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also acknowledged that counsel advised him of the implications attached to his request for discharge and understood that by submitting this request that a court-martial conviction could lead to the imposition of a bad conduct or dishonorable discharge. a. He acknowledged that, prior to completing his request for discharge; he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, and any relevant lesser-included offenses. Counsel also advised him of the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty. b. He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions. He also acknowledged that counsel advised him of and understood the possible effects of a punitive discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also acknowledged he understood that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority’s consent or without the separation authority’s consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. 6. The applicant chose to submit a statement through his Defense Counsel containing information available in his military records and from a personal interview, which stated, in effect: a. The applicant is 20 years old and he was born on 24 May 1951. He completed the 12th grade and one semester of Junior College. His parents reside in Houston, TX, and he has two sisters. b. He was inducted into the Army of the United States on 19 February 1971 for a term of two years. He completed BCT at Fort Polk, LA. He completed all of the requirements for AIT at Fort Polk; however, because of a physical problem he was not awarded the military occupational specialty (MOS) for that particular course (Truck Driver). c. His problems revolve around an injury that he received in BCT. On the next to last day of BCT, the applicant broke his back. He was credited with completion of BCT and then was scheduled for AIT. During AIT he had numerous problems with his back. Even though he felt he had completed all requirements to hold the MOS of Truck Driver, he was not credited with completion of the training because of his back problem. He was then held over for several weeks pending reassignment. During this period, he felt he was being unjustly treated and that he was not receiving proper medical attention for his back. Unable to cope with these problems any longer, he left military control. 7. On 31 January 1972, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions. On 10 February 1972, he was discharged accordingly. 8. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 5 months and 13 days of creditable active service with time lost for the periods 26 June through 6 December 1971 and 15 December 1971 through 12 January 1972. 9. There is no evidence indicating 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 of that regulation provides, in pertinent part, 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. 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 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. 2. The U.S. Army does not have nor has it ever had a policy to upgrade discharges automatically. Each case is decided on its own merits when an applicant requests a change to the character of discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. DISCUSSION: 1. The applicant's record shows 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. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 2. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. The evidence shows the applicant was over 20 years of age at the time of his AWOL offense. There is no evidence indicating the applicant was any less mature than other Soldiers of the same age who successfully completed their military service. 4. Contrary to the applicant's belief, the U.S. Army does not have a policy to upgrade discharges automatically. The Board decides each case based upon its merits when an applicant requests a change in his or hers discharge. 5. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service does not meet the criteria for a general or an honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013846 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2