IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150016934 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: 4 April 2017 DOCKET NUMBER: AR20150016934 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: 4 April 2017 DOCKET NUMBER: AR20150016934 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. 2. The applicant states he was discharged in 1984 with hepatitis C that led to his bladder cancer. He served more than 24 months of active duty so he should be able to receive mental [health] care based on the standards posted on the Department of Veterans Affairs website. A correction of his record is what he needs to get help. 3. The applicant provides no additional documents. 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 6 November 1981. 3. The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for the following offenses: * Failing to go at the time prescribed to his appointed place of duty (16 October 1982) * Unlawfully striking a specialist four (2 May 1983) * Operating a vehicle while drunk (10 May 1983) * Violating a lawful regulation by transporting two open alcohol containers in his privately owned vehicle (10 May 1983) * Breaking restriction (27 and 29 January 1984) 4. On 29 February 1984, court-martial charges were preferred against him for four specifications of violating a lawful general regulation by failing to report within 24 hours that a ration control plate had been found; by purchasing $638.00 worth of commissary and post exchange duty-free items when only authorized $275.00 worth; by purchasing 116 ounces of instant coffee when authorized 20 ounces, 448 ounces of mayonnaise when authorized 64 ounces, and 60 bottles of liquor when authorized 4 bottles; and by transferring or otherwise disposing of in Korea any duty-free goods to any person not authorized duty-free import privileges under United States – Republic of Korea Status of Forces Agreement. 5. On 5 March 1984, the applicant consulted with legal counsel and he voluntarily requested discharge 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. In doing so, he admitted guilt to one or more of the offenses charged. He acknowledged that he made this request of his own free will and had not been subjected to any coercion by any person. He did not submit statements in his own behalf. He was advised he could be discharged with an UOTHC and its effects on him. He acknowledged: * he could be deprived of many or all Army benefits, and he could 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, and he could expect to encounter substantial prejudice in civilian life * he could expect to encounter substantial prejudice in civilian life with a discharge UOTHC * he could apply to the Army Discharge Review Board for a review of his discharge 6. On 6 March 1984, the company commander and trial counsel recommended approval with a discharge UOTHC. 7. On 15 March 1984, the battalion commander recommended approval with a discharge UOTHC. 8. On 16 March 1984, the applicant underwent a physical examination and was found qualified for separation. 9. On 23 March 1984, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with issuance of an UOTHC discharge certificate and reduction to private/E-1. 10. On 19 April 1984, the Army discharged him from active duty with an UOTHC character of service. He completed 2 years, 5 months, and 14 days total active military service. 11. On 30 December 1985, the Army Discharge Review Board denied his request for an upgrade of his discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. a. 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. 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system. It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. Soldiers charged with an offense, or under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing unless the investigation ends without charges or the officer exercising proper court-martial jurisdiction dismisses the charge(s). Soldiers may not be referred for physical disability processing when action has been started that may result in their administrative separation UOTHC. DISCUSSION: 1. The applicant's service record shows he received three Article 15s and court-martial charges were preferred against him for violating multiple general regulations concerning the purchasing and transfer of goods to foreign nationals in violation of the United States – Republic of Korea Status of Forces Agreement. 2. 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 advice from legal counsel, the applicant voluntarily requested discharge for the good of the service 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. The characterization of his service was commensurate with the reason for his discharge. 3. Concerning his contention that he contracted hepatitis C while in the service, once court-martial charges were preferred against him which could have resulted in a punitive discharge, he was not eligible by regulation for processing through the physical disability evaluation system. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016934 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016934 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2