BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160000943 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: 19 September 2017 DOCKET NUMBER: AR20160000943 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: 19 September 2017 DOCKET NUMBER: AR20160000943 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 under honorable conditions (general) discharge. 2. The applicant states he was wrongly discharged from the Army. His last incident in the military was a misunderstanding, and he was never given the opportunity to tell the truth of what actually happened. He was discharged for misconduct that he did not intentionally commit. Since being discharged from the military, he has not gotten into any trouble and has a clean record. He asks that he be upgraded to a general discharge so that he can at least have burial benefits after he passes away. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 15 December 1976, a letter from his spouse, three certificates of achievement, a letter of appreciation, and three letters of commendation. 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 20 November 1973. 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates and for the following offenses: * on 2 February 1976, for being drunk and disorderly on or about 27 January 1976 * on 18 June 1976, for failing to go at the time prescribed to his place of duty on or about 28 May 1976 * on 9 July 1976, for drunk and disorderly conduct and for wrongfully communicating a threat on or about 21 April 1976 4. Court-martial charges were preferred against the applicant on 1 November 1976 for intentionally inflicting grievous bodily harm to another Soldier on or about 29 October 1976. 5. The applicant consulted with legal counsel on 16 November 1976, and 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 UOTHC discharge, and of the procedures and rights that were available to him. a. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. b. In doing so, he acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge; he was guilty of the charge against him; and 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) * 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 * could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 6. The separation authority approved the applicant's request for discharge on 3 December 1976, and directed his reduction to private/E-1 and the issuance of an Undesirable Discharge Certificate. 7. The applicant was discharged on 15 December 1976. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his service was characterized as UOTHC. 8. The Army Discharge Review Board denied his request for an upgrade of his discharge on 7 November 1983. 9. The applicant provides: a. An undated letter from his spouse detailing the circumstances surrounding his assault charges as well as attesting to his character. b. Three certificates of achievement, dated 31 March 1976, 22 June 1976, and 14 July 1976. c. A letter of appreciation from the Installation Coordinator, dated 17 September 1975. d. Two letters of commendation, dated 10 September 1974, 19 September 1974, and 22 June 1976. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, 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, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. DISCUSSION: 1. The applicant's request for an upgrade of his UOTHC discharge was carefully considered. 2. The applicant contends he was never given the opportunity to tell the truth of what happened; however, the record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. There is no indication the request was made under coercion or duress. 3. His record of indiscipline includes NJP on three occasions and assault upon another Soldier with a means likely to produce grievous bodily harm. 4. The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 5. During his final year of service, the applicant's record of indiscipline included multiple violations of the UCMJ that resulted in court-martial charges and nonjudicial punishment. The separation authority determined his service did not rise to the level required for a general or an honorable 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) AR20160000943 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000943 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2