BOARD DATE: 25 April 2017 DOCKET NUMBER: AR20150017747 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: 25 April 2017 DOCKET NUMBER: AR20150017747 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: 25 April 2017 DOCKET NUMBER: AR20150017747 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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, that his discharge should be upgraded based on the circumstances that led to his discharge, his positive work history since his discharge, his status as a husband and father, and his active membership in his church. 3. The applicant provides evidence rendered by civilian counsel (as mentioned below). COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, the applicant's UOTHC discharge be upgraded to an honorable discharge. 2. Counsel, in a four-page letter, states: a. In the interest of justice, the applicant should be granted an upgrade of his discharge due to his honorable service overseas, his positive history of employment and his devotion to his family and church. b. He enlisted in the United States Army Reserve (USAR) on 10 December 1976, at the age of 19 and subsequently enlisted in the Regular Army on 10 January 1977 for a period of three years. He was trained as a telecommunications specialist (72E) and thereafter was assigned overseas in Korea from 4 July 1977 through 5 July 1978. He was promoted to private first class (PFC) on 11 December 1977. c. While on leave, he was with two friends when the vehicle he was riding in was pulled over by the police. During the traffic stop, the police found marijuana in the car and all three were charged with possession. The applicant stated the marijuana belonged to the driver of the vehicle. The applicant and the two other defendants were required to appear in court during the time he was on leave, which was scheduled to end on 9 August 1978 and report to Fort Hood, Texas. The applicant sought a compassionate reassignment to Fort Dix, New Jersey but was denied. After several months and at the second court appearance, the driver pleaded guilty to possession and all charges against the applicant were dropped. d. He then attempted to resolve his issues with the Army by overstaying his leave from Korea. He traveled to his next duty assignment, Fort Hood, and reported on or about 2 November 1978. He was discharged on 19 January 1979. There are no court-martial or non-judicial punishment records; however, there is indication of "85 days lost under Title 10, USC 972 from 9 August 1978 to 2 November 1978. His discharge was for "good of the service, in lieu of court-martial." e. He now understands he should have kept the Army informed as to his whereabouts; however, he felt it was important to resolve his outstanding issues prior to reporting to Fort Hood, for fear that his absence could have caused him to be charged with the crime of possessing marijuana, which he did not commit. f. The applicant's service in Korea was honorable, since his discharge he has been fully employed, a devoted family man, and church goer. He has numerous character references and has volunteered signifying his contributions to society. The circumstances surrounding his delay to report to his next duty station, the lack of prosecution, and his honorable life since the Army should merit an upgrade of his discharge. 3. Counsel provides a four-page letter and numerous documents, tabbed and organized as follows: * Enclosure 1 – DD Form 214 (Report of Separation from Active Duty) * Enclosure 2 – DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), dated 10 December 1976 * Enclosure 3 – DA Form 2-1 (Personnel Qualification Record – Part II) * Enclosure 4 – a letter from Home Depot confirming his employment, dated 12 August 2015 * Enclosure 5 – a letter from Walmart confirming his employment, dated 23 August 2015 * Enclosure 6 – three character statements 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 11 January 1977. He was ordered to Fort Gordon, Georgia, for military training. 3. While in training, the applicant accepted non-judicial punishment (NJP) on 9 June 1977, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties, to wit; sleeping in class on 31 May 1977. 4. Following the completion of his initial entry training on or about 16 June 1977, the applicant was awarded military occupational specialty (MOS) 72E (Telecommunications Center Specialist) and was reassigned for overseas service in the Republic of Korea. 5. The applicant served in the Republic of Korea from on or about 4 July 1977 through on or about 5 July 1978. Orders 109-214, issued by U.S. Army Military Personnel Center Korea on 19 April 1978, reassigned him to the 15th Adjutant General (AG) Replacement Detachment, Fort Hood, Texas, effective 8 August 1978. 6. The applicant's record contains the following: a. A DA Form 4187 (Personnel Action), dated 6 November 1978, which shows his duty status was changed from assigned not joined to absent without leave (AWOL) on 9 August 1978. b. A DA Form 4187, dated 6 November 1978, which shows his duty status changed from AWOL to "confined military authorities" after he surrendered himself to AWOL Apprehension at Fort Dix, New Jersey on 3 November 1978. It further shows he was issued a travel document and ordered to report to Fort Hood, Texas. c. A DA Form 4187, dated 6 November 1978, which shows his duty status changed from "confined military authorities" to present for duty with the 15th AG, Fort Hood, Texas. It also noted he was AWOL for a total of 86 days. d. A DD Form 458 (Charge Sheet), dated 9 November 1978, which shows court-martial charges were preferred against him for being AWOL on or about 9 August 1978 to on or about 3 November 1978. 7. The applicant's immediate and intermediate commanders, by memoranda, recommended a special court-martial and a bad conduct discharge special court-martial on 27 November 1978 and 5 December 1978, respectively. 8. The applicant underwent a mental status evaluation on an unspecified date. The examining official stated he was fully alert and oriented, with normal behavior, and good memory. His thinking and thought content was clear and normal. He was mentally responsible and could distinguish right from wrong. He further had the mental capacity to understand and participate in board proceedings and meet retention standards under the provisions of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 9. The applicant consulted with legal counsel on 21 December 1978, and subsequent to that meeting, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. 10. In doing so, the applicant acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he would not submit statements on his own behalf 11. The approval authority approved the applicant's request for discharge on 28 December 1978, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade, and that he be issued a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate). 12. The applicant was discharged accordingly on 19 January 1979. The DD Form 214 he was issued shows: * he was credited with the completion of 1 year 9 months, and 16 days of total active service * he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – conduct triable by court-martial * his service was characterized as under other than honorable conditions * he had lost time from 9 August 1978 through 2 November 1978, a period of 85 days 13. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 14. The applicant, through counsel, provides the following evidence that has not been discussed above: a. A letter of employment from Home Depot, dated 12 August 2015, which characterizes the applicant as a very reliable and outstanding associate who has worked full time since 1994. b. A letter of employment from Walmart, dated 23 August 2015, which states the applicant has been employed with Walmart for 9 years and is best known for his customer service, product knowledge, and his wide array of skills beneficial to any organization. Additionally, it notes that he devotes his time to Homefront (an organization devoted to helping the poor). c. Three character reference statements that attest to his dependability, generosity, good citizenship, and reliability. He is characterized as a good family man and friend. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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. c. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. An under conditions other than honorable characterization of service required reduction to the lowest enlisted grade. DISCUSSION: 1. The applicant's and his counsel's contention that his UOTHC discharge should be upgraded to an honorable discharge was carefully considered. 2. The applicant's record shows he was AWOL for 85 days and surrendered to military authorities. Subsequent to his return to military control, court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge in order to avoid trial by court-martial and the potential punitive discharge. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. His discharge accurately reflects his overall record of service. The characterization of service he received was commensurate with the reason for his discharge. 4. An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. The applicant's overall record of service did not support the issuance of a fully honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now. 5. The applicant’s post-service achievements and ability to overcome his discharge are commendable; however, they do not mitigate his record of indiscipline that occurred during his service. His contentions were noted and considered; however, there is no evidence to show that the type of separation, narrative reason, and characterization of service he received were in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017747 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017747 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2