BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150018355 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: 6 July 2017 DOCKET NUMBER: AR20150018355 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: 6 July 2017 DOCKET NUMBER: AR20150018355 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 under other than honorable conditions to honorable. 2. The applicant states, in effect, he served in the Army from 1979 to 1982. He went to basic training at Fort Gordon, GA and, from there, to Fort Benning, GA for airborne training. His first assignment after initial training was with the 509th Infantry Regiment in Vicenza, Italy, but he was transferred to a nuclear site under the 69th Ordnance Company. He had a Secret security clearance and performed all of his duties. He left Italy after 2 1/2 years and was reassigned to the 12th Infantry Division (should read 12th Engineer Battalion, 8th Infantry Division) in Oppenheim, Germany. He tried to get out of his unit by reenlisting for Korea, but he was told he could not do so until he was "30 days short." He was young and stupid, and took it upon himself to go back to the United States. After a couple of weeks, he turned himself in at Fort Dix, NJ. He stayed there a few weeks before he was tried by a court-martial. He was told he could "plead out" and would receive a discharge under other than honorable conditions. He was also advised his character of service would be upgraded to honorable within 90 days to 6 months. His discharge was never upgraded. 3. The applicant provides a letter from the National Personnel Records Center, dated 27 October 2015. 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 3 April 1979. He participated in one-station unit training (combined basic training and advanced individual training at the same location) for military occupational specialty 36K (Tactical Wire Operations Specialist). He then attended airborne training and was reassigned to the 69th Ordnance Company in Italy, arriving on or about 13 September 1979. 3. His available service record contains the following: a. Memorandum, dated 8 April 1980, subject: Request for Exception to Single Permanently Disqualifying Factor (Personnel Reliability Program (PRP) (Applicant), which essentially states: * the Central Clearance Facility at Fort Meade, MD provided information about the applicant's pattern of misconduct from 1974 to 1976 that potentially disqualified him from the PRP * the applicant's commander requested an exception to policy for the applicant to remain in the PRP based on the applicant's outstanding conduct and efficiency; the commander felt recurrence was unlikely b. Memorandum, dated 11 April 1980, subject: Review of Request for Exception to Single Permanently Disqualifying Factor for PRP (Applicant) shows the commanders request was approved. c. Document, dated 15 July 1981, subject: Permanent Disqualification from PRP, addressed to the applicant from the Commander, 69th Ordnance Company, advised him he was being considered for permanent disqualification from the PRP. The commander based this recommendation on the applicant's negligence or delinquency in the performance of duty. The document also cited paragraph 3-12a (Disqualifying Factors), Army Regulation 50-5 (Nuclear Surety). The applicant acknowledged receipt and submitted a personal statement in which he essentially requested to remain in the PRP. This document also contains three comments (CMT), dated 15 July 1981: (1) CMT 2 shows the applicant acknowledged he understood he was being permanently disqualified from the PRP; he was advised of his rights and the opportunity to make a rebuttal statement. (2) CMT 3 prepared by the applicant's commander and addressed to higher headquarters, stated the applicant was recommended for permanent disqualification from the PRP because he had demonstrated negligence and delinquency in the performance of his duties. He was pending nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty at the time prescribed. He was also pending an action in Italian civil court for stealing a moped. (3) CMT 4 was prepared by the higher headquarters and approved the commander's recommendation for permanent disqualification from the PRP. 4. On or about 16 October 1981, he was reassigned to the 12th Engineer Battalion, 8th Infantry Division, located in Germany. 5. The applicant departed his unit in Germany in an absent without leave (AWOL) status from 17 December 1981 to 20 January 1982 until he was returned to military control and was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Dix. 6. On 22 January 1982, his commander at the PCF, Fort Dix, preferred court-martial charges against him for the above period of AWOL, which equals 35 days. 7. On 29 January 1982 after consulting with legal counsel, the applicant submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). a. His request indicated he was taking this action of his own free will, without coercion from anyone, and he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge. b. Further, he acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of many or all benefits as a result of such a discharge. He elected not to submit a statement in his own behalf. 8. On 1 March 1982, the separation authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions characterization of service. He was discharged accordingly on 26 March 1982. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 10 months, and 20 days of net active service during this period with lost time from 17 December 1981 to 20 January 1982. It also reflects his character of service was under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists "NONE." 10. On 8 February 1990, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. On 1 April 1991, the ADRB denied his request. REFERENCES: Army Regulation 635-200 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states 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. DISCUSSION: 1. The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are based on a voluntary request and the evidence of record shows the applicant voluntarily, willingly, and in writing requested discharge in lieu of trial by court-martial. 2. All requirements of law and regulation appear to have been met and the evidence indicates the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. There is no evidence of error or injustice in the characterization of his service. 3. The U.S. Army has never had a policy where a discharge was automatically upgraded. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The ABCMR will direct changes if it determines the characterization of service or the reason for discharge was improper or inequitable, or both. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018355 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018355 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2