BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160000960 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: 24 August 2017 DOCKET NUMBER: AR20160000960 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: 24 August 2017 DOCKET NUMBER: AR20160000960 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 general under honorable conditions. 2. The applicant states: a.  His father, mother, and brother all had passed away by the time he was 15 years old. b.  He got caught up in a family issue between his brother and sister while he was in the Army and he took a few authorized days off, which turned into a few weeks. c.  He discovered his entire company was in Virginia attending his best friend's funeral when he returned. To make matters worse, his friend was killed while riding the motorcycle that he had traded for a car his friend had. He freaked out and turned around a left again, ultimately for good. d.  He was at Griffiss Air Force Base, Rome, NY, in October 1980 and was later transferred to Fort Dix, NJ, with no money or coat. He was given 2 weeks of excess leave without pay and told to leave and return. He ended up approximately 15 miles outside of Utica, NY, literally staying in the actual "Nightmare on Elm Street" house, the Jas__ or Jass__ family home. (Note: The home filmed for the movie "A Nightmare on Elm Street" is located in Los Angeles, California, not the fictional Springwood, Ohio, portrayed in the movie.) While staying there, Mr. F____, also known as F____ J____, shot himself in the head while playing Russian roulette in front of him. He thinks it was an accident because Mr. F____ woke him up and put the gun to his head, cocked it, and asked him if he wanted to play. He told Mr. F____ no and Mr. F____ responded by saying, "What's the matter, you chicken? Here, I'll go first." As the gun was fully loaded, it ended up being a short game. Police were involved and shortly thereafter he was transported back to Griffiss Air Force Base and later to Fort Dix, NJ, where he was discharged in early 1981. 3. The applicant provides: * two self-authored statements * four character reference letters * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Genesis Health Care Notice of Transfer or Discharge, dated 14 April 2017 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 9 October 1979. 3. His DD Form 1966 (Record of Military Processing – Armed Forces of the United States) shows his father, mother, and brother were deceased when he enlisted. 4. DA Forms 4187 (Personnel Action) contained in his records show his duty status changes as follows: * 23 May 1980 – present for duty to absent without leave (AWOL) * 24 May 1980 – AWOL to present for duty * 13 June 1980 – present for duty to AWOL * 16 June 1980 – AWOL to present for duty 5. On 17 June 1980, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for: * failing to go at the time prescribed to his appointed place of duty on or about 23 May 1980 * failing to go at the time prescribed to his appointed place of duty on or about 13 June 1980 * being AWOL on or about 13 June 1980 until on or about 16 June 1980 6. On 27 July 1980, his duty status changed from present for duty to AWOL. 7. On 26 August 1980, his duty status changed from AWOL to dropped from the rolls. 8. On 23 October 1980, his duty status changed from dropped from the rolls to present for duty. 9. On 24 October 1980, he was granted excess leave. 10. A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 3 November 1980, shows he turned himself over to military control on 21 October 1980 at Griffiss Air Force Base, Rome, NY. 11. On 10 November 1980, his duty status changed from excess leave to AWOL. 12. On 17 November 1980, his duty status changed from AWOL to present for duty. 13. His complete discharge package is not available for review. 14. On 20 January 1981, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He completed 1 year, 1 month, and 4 days of creditable active military service. His service was characterized as under other than honorable conditions. 15. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 16. He provided a self-authored statement in which he describes family deaths, military training, and circumstances leading to his AWOL status. He also provided: a.  a character-reference letter from Pastor R____ D. F____, dated 24 November 2015, wherein he stated he believed the applicant was a changed man from what he may have been in his youth and he lived like he had taken the Hippocratic Oath to "do no harm"; b.  a character-reference letter from M____ A. D____, dated 1 December 2015, wherein he stated he had known the applicant for 2 years. He indicated the applicant was completing an unidentified program and education in attempts to move back into society in a positive way; c.  a character-reference letter from his primary counselor, Ms. K____ E. B____, Bimini Recovery Center, Los Angeles, CA, undated, wherein she stated the applicant entered the facility on 23 October 2015 and he was a participant in their program which addresses the various needs of a recovering addict. She further stated the applicant has shown he is determined to re-enter society on a positive note in his endeavors to become whole of himself; d.  a self-authored letter, dated 17 April 2017, wherein he stated he was released from the hospital after convalescence from shoulder surgery and subsequent surgeries. He did not receive his mail until his return to the Bimini Recovery Center; e.  Genesis Health Care – Notice of Transfer or Discharge, dated 14 April 2017, which shows his release from care and transfer to the Bimini Recovery Center. He also provided a recapitulation of stay and final summary for his stay at the medical facility; and f.  an unsigned character-reference letter from R____ F____, client advocate, Bimini Recovery Center, dated 17 April 2017, which states the applicant arrived at the center from an acute state of homelessness and he has been a resident of the facility since 23 October 2015. His stay was being paid by the Department of Veterans Affairs. The Bimini Center provides a structured substance abuse recovery program for the recovering alcoholic/addict. The applicant has been in good standing since his arrival. His attitude has been very cooperative and he continues to participate in all assigned in-house groups and activities. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. b.  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.  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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. DISCUSSION: 1. The applicant requests an upgrade of his discharge under other than honorable conditions. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. Although his complete discharge package is not available for review, his records indicate he voluntarily requested discharge instead of facing court-martial charges for an offense or offenses which could have resulted in a punitive discharge under the Uniform Code of Military Justice. 3. In the absence of evidence to the contrary, it is presumed that his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000960 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000960 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2