BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018320 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 May 2017 DOCKET NUMBER: AR20150018320 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 May 2017 DOCKET NUMBER: AR20150018320 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, in effect, that his character of service be changed from under other than honorable conditions (undesirable) to honorable. He also requests a personal appearance before the Board to explain the circumstances surrounding his discharge. 2. The applicant states he never received a copy of his discharge and he was never informed it was other than honorable. He always believed he received an honorable discharge. Due to circumstances with his chain of command, he believes he was given this type of discharge without reason and it was not justified. He witnessed an injustice, reported it, and believes he was treated unjustly because of his report. All he requests is a chance to appear and discuss these circumstances which he believes will result in his discharge being upgraded. 3. The applicant provides: * self-authored statement * four character references * DD Form 214 (Report of Separation from Active Duty) * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) 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 1 July 1975. 3. On 15 June 1976 and 3 December 1976, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for being disrespectful in language toward a noncommissioned officer (NCO) and for failing to go at the time prescribed to his appointed place of duty. 4. On 9 February 1977, court-martial charges were preferred against the applicant for being absent without leave from on or about 15 December 1976 to 8 February 1977. 5. On 9 February 1977, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge or dishonorable discharge and the procedures and rights that were available to him. Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel), chapter 10, for the good of the service. He further acknowledged he understood that if his discharge request was approved, his service could be characterized as under other than honorable conditions and, as a result, he could be deprived of many or all Army benefits, could be ineligible for many or all benefits administered by the Veterans Administration, and could be deprived of his rights and benefits as a veteran under both Federal and State laws. In making his request he acknowledged he was guilty of the charge against him or a lesser included offense. He did not submit statements in his own behalf. 6. On 17 February 1977, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the rank of private/E-1. 7. The Army discharged him on 25 February 1977 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service. He completed 1 year, 6 months, and 2 days of creditable active service with 55 days of lost time. 8. His service record does not indicate he applied to the Army Discharge Review Board within that board's 15-year statute of limitations. 9. He provided a self-authored statement in which he indicated that he served in the U.S. Army from 1975 to 1977. He reiterated that he thought he received an honorable discharge but recently discovered he was issued an under other than honorable conditions discharge. He states he believes he received an Article 15 during his period of service for reporting the actions of an NCO to his chain of command that he believed to be unlawful and immoral. He claims his reporting these actions to his chain of command resulted in threats, extra duty, and finally an Article 15. He states he served his country with pride and honor and he requests this Board give him the opportunity to present his case to have his discharge changed to honorable. 10. He provided character references from a magisterial district judge, a friend, a Veterans of Foreign Wars Senior Vice Commander (and former Post Commander), and a principal from his grandchildren's school. These references describe him as professional, hard-working, courteous, generous, kind, honest, trustworthy, a role model, caring, supportive, and dedicated. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's service record shows he received two Article 15s and court-martial charges were preferred against him for being AWOL from 15 December 1976 through 7 February 1977. 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 and acknowledged his service could be characterized as under other than honorable conditions as a result of his request for discharge. 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. The evidence of record shows the applicant was afforded the opportunity to submit statements in support of his chapter 10 request, but he declined the opportunity. 4. An under other than honorable conditions characterization of service was normally appropriate for a Soldier discharged under chapter 10. The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and the independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018320 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018320 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2