IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015157 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: 31 January 2017 DOCKET NUMBER: AR20150015157 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: 31 January 2017 DOCKET NUMBER: AR20150015157 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 upgrade of his under other than honorable conditions (UOTHC) discharge. 2. The applicant states, in effect, at the time of his separation processing he was not concerned with the type of discharge he received. He just wanted to get out of the Army. He also states there was talk about charging him with inciting a riot; however, he actually stopped a riot from getting out of control. 3. The applicant provides no additional documentary evidence in support of his application. 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 on 26 June 1970 for a period of 2 years. Upon completion of training he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic). 3. The applicant received nonjudicial punishment (NJP) on five occasions for: * willfully disobeying a lawful order from his superior noncommissioned officer (NCO) on 7 July 1970 * being disrespectful in language toward his – * superior NCO on 11 July 1970 * superior NCO on 21 September 1970 * class leader on 14 October 1970 * absenting himself from his place of duty on 8 December 1970 on two occasions (at 0800 hours and again at 1300 hours) 4. Headquarters, Fourth Combat Support Training Brigade, U.S. Army Training Center, Infantry, Fort Polk, LA, Special Court-Martial Order Number 94, dated 9 December 1970, shows the applicant was tried by a special court-martial on 1 December 1970. a. He was found guilty of violation of the Uniform Code of Military Justice (UCMJ) – * Article 89, for behaving himself with disrespect toward his superior commissioned officer on 21 October 1970 * Article 91, for being disrespectful in language toward his superior NCO on 21 October 1970 b. He was sentenced to forfeiture of $50 pay per month for 3 months and to perform two (2) hours of extra duty per day for 30 days. c. On 9 December 1970, the Special Court-Martial Convening Authority approved the sentence and ordered it executed. 5. The applicant was assigned overseas to Germany on 12 March 1971. 6. Headquarters, U.S. Army Personnel Center, letter, dated 9 April 1971, subject: Enlisted Member Arrested by Civil Authorities, shows the Adjutant General forwarded to the Commander, U.S. Army Oversea Replacement Station, Fort Dix, NJ, information pertaining to the applicant's civilian arrest record. The attached Federal Bureau of Investigation Report, in pertinent part, shows the following: * 7 March 1970 – burglary, larceny, "RSG," conspiracy * 1 May 1970 – larceny of automobile and accident * 2 March 1971 – contempt of court 7. A review of the applicant's military personnel records failed to reveal a copy of a charge sheet or a complete copy of his administrative separation packet. 8. Headquarters, 1st Armored Division (U.S. Army, Europe), memorandum, dated 6 October 1971, shows the commanding general approved the applicant's request for discharge for the good of the service, directed he be reduced to the lowest enlisted grade (E-1), and that he be issued an Undesirable Discharge Certificate. 9. Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, Special Orders Number 292, dated 19 October 1971, discharged the applicant from the Regular Army, effective 19 October 1971, under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) with Separation Program Number (SPN) 246 (Discharge for the Good of the Service), and a DD Form 256A (Undesirable Discharge Certificate). 10. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty this period on 26 June 1970 and he was discharged on 19 October 1971 UP AR 635-200, SPN 246, for the good of the service with an UOTHC character of service. He had completed 1 year, 3 months, and 23 days of net active service during this period and he had 1 day of time lost. 11. A review of the applicant's military personnel records failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, 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. 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 UOTHC is normally considered appropriate. b. 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. c. 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. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends, in effect, his UOTHC discharge should be upgraded because it was unjust. 2. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed are presumed to have been appropriate. 3. The evidence of record shows the applicant received NJP on five occasions for various offenses of the UCMJ and he was convicted at a special court-martial. The evidence of record also shows he requested discharge for the good of the service in lieu of trial by court-martial and that the separation authority approved his request with an UOTHC characterization of service, which was commensurate with the reason for his 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) AR20150015157 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015157 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2