BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150018037 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: 4 April 2017 DOCKET NUMBER: AR20150018037 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: 4 April 2017 DOCKET NUMBER: AR20150018037 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 discharge from under other than honorable conditions (UOTHC) to an honorable discharge (HD). 2. The applicant states: a. He was young and immature when he joined the military and English was his second language. He had a hard time trying to learn a second language and he acted out on his frustration. There was a lot of prejudice and racial profiling that he had not experienced before he joined the military and all of these issues added to his compounded frustrations. b. Since leaving the military, he has not had any issues with the law. He has grown far beyond the angry Soldier that served in the military. c. He uses the skills that he was taught in the service to run his own company today. He has been a model citizen and he has raised two beautiful kids. 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. On 1 November 1985, the applicant enlisted in the Regular Army (RA) for 4 years at 20 years of age. He completed training as a combat signaler. 3. The applicant accepted nonjudicial punishment (NJP) on four separate occasions between 28 May 1987 and 10 February 1989 for the following: * Being derelict in the performance of his duties (two specifications) * Being disrespectful in language toward a noncommissioned officer (three specifications) * Willfully disobeying a lawful order (three specifications) * Wrongfully using provoking words toward another Soldier * Unlawfully striking another Soldier in his face with his closed fist * Willfully and wrongfully damaging property belonging to another Soldier * Failure to go to his appointed place of duty (two specifications) * Failure to report for a company urinalysis 4. The applicant went absent without leave (AWOL) on 24 April 1988. He surrendered to military authorities on 25 April 1988. 5. The applicant was counseled on four separate occasions between 9 May 1988 and 6 June 1988 for the following: * Attempting to promote a duel with a Soldier * Not promptly returning to duty after being released to go to the bank * Not returning to duty after being released to go to chow and to check mail * Entering another Soldier's room without permission and destroy property belonging to that Soldier * Physically striking that Soldier across his face to provoke a fight * Misconduct 6. On 6 June 1989, the applicant was issued a General Officer Memorandum of Reprimand (GOMOR) for being involved in a traffic accident in which he lost control of the vehicle he was operating causing it to slide into two traffic control devices. After moving his vehicle to the side of the road, he was apprehended while trying flee the scene in a taxi. Subsequently, a blood alcohol test was administered which resulted in a reading of 1.10 percent micrograms/milliliter. The applicant was told that his actions seriously endangered not only himself, but the lives of others. He was told that his actions were a discredit to the command and the Army and that future misconduct would not be tolerated. The applicant acknowledged receipt of the GOMOR and the commanding general directed that the GOMOR be filed in his Official Military Personnel File (OMPF). 7. On 2 May 1989, the applicant was notified that charges were pending against him for being AWOL, wrongfully possessing a switchblade knife, wrongfully operating a passenger car while drunk and in a reckless manner causing the vehicle to strike and damage property of the Federal Republic of Germany, and wrongfully leaving the scene of an accident without making his identity known. He acknowledged receipt of the notification and consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct discharge (BCD) or a dishonorable discharge (DD), the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him. Following consultation with counsel, he submitted a request for 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 his request for discharge, he acknowledged he understood the following: a. If his request for discharge was accepted, he could be issued a discharge under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge. b. He could be ineligible for many or all benefits administered by the Veterans Administration. c. He could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions. 8. The separation authority approved his request for discharge on 11 May 1989 and directed the issuance of a discharge UOTHC and reduction to the lowest enlisted grade. 9. On 7 June 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He completed 3 years, 7 months, and 6 days of net active service. His service was characterized as under other than honorable conditions. 10. On 3 November 1993, the applicant was advised that the Army Discharge Review Board had denied the applicant's petition for an upgrade of his discharge and a change to his reason for discharge. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 HD or a general discharge (GD) is authorized, a discharge UOTHC would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a states that an HD 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 GD 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 was 20 years old when he enlisted in the RA. There is no evidence indicating was any less mature than other Soldiers of the same age who successfully completed their service obligations. While he may have been experiencing problems understanding English, there is no evidence this frustration rose to a level that it should have been considered a mitigating factor in the misconduct that led to his discharge. 2. His records show he had charges pending against him for numerous offenses that could have resulted in him receiving a BCD or a DD. He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial. Prior to his discharge he acknowledged that he understood the type of discharge he might receive. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 4. His post-service conduct and accomplishments are noted and are commendable. Post-service conduct alone is not normally a basis for upgrading a 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) AR20150018037 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018037 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2