BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160001620 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: 15 June 2017 DOCKET NUMBER: AR20160001620 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. _________________________ 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: 15 June 2017 DOCKET NUMBER: AR20160001620 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 character of service from under other than honorable conditions to under honorable conditions (general). 2.  The applicant states, in effect, one of his friends had just gotten out of the military and no longer had identification. His friend asked him to take some items to a pawn shop and pawn them because he needed money. He brought his friend's items to the pawn shop and used his military identification to pawn the items. He gave his friend the money; however, a few days later he was told to report to the company commander who presented him with nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). At his age, he would like to be eligible for medical benefits and a military memorial service upon his death. 3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty). 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 25 November 1975 at 17 years and 10 months of age. He completed training and he was awarded military occupational specialty 05E (Voice Radio Operator). 3.  On 9 March 1978, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for: * willfully disobeying a lawful order from a superior noncommissioned officer * twice wrongfully having in his possession one ounce, more or less, of marijuana * without authority, going from his appointed place of duty 4.  His records contain a DD Form 458 (Charge Sheet), dated 20 March 1978, which shows court-martial charges were preferred against him for violation of Article 121, UCMJ, on or about 1730 hours, 7 March 1978, by stealing U.S. currency, of a value of $100.00, the property of another Soldier, and for violating Article 91, UCMJ, as follows: a.  on or about 14 March 1978, being disrespectful in language toward a superior noncommissioned officer on three different occasions. b.  on or about 14 March 1978, willfully disobeying a lawful order from a superior noncommissioned officer. c.  on or about 14 March 1978, assaulting a superior noncommissioned officer. 5.  On 23 March 1978, the applicant met with counsel and 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. He acknowledged he understood he could request a discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also acknowledged he had been advised of the implications attached to his request for discharge and understood that by submitting this request he was acknowledging he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. Moreover, he stated that under no circumstance did he desire further rehabilitation, for he had no desire to perform further military service. a.  He acknowledged that, prior to completing his request for discharge; he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, and any relevant lesser-included offenses. Counsel also advised him of the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty. b.  He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions. He also acknowledged counsel advised him of and he understood the possible effects of a punitive discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also acknowledged he understood that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. c.  He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority's consent or without the separation authority's consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. He was advised he could submit any statements he desired in his own behalf; however, none were submitted with his request. 6.  On 24 March 1978, the applicant's immediate commander recommended approval of his request with the issuance of an Undesirable Discharge Certificate. The reason for his recommendation was that the applicant was belligerent and disrespectful to military and civilian authority and routinely committed offenses punishable under the UCMJ. On 24 and 27 March 1978, respectively, his intermediate commanders also recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate. 7.  The separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 1 May 1978, he was discharged accordingly. 8.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with characterization of his service as under other than honorable conditions. He completed 2 years, 5 months, and 7 days of total active service with 27 days of time lost due to excess leave. 9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 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. 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 3-7b 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 charged with the commission of offenses punishable under the UCMJ with a punitive discharge. 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 the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request he acknowledged he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. 2.  Notwithstanding the applicant's contentions related to pawning items for a friend, he provided no evidence and his records contain no evidence to corroborate this claim. The evidence clearly shows he was properly and equitably discharged in accordance with the regulations in effect at the time. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3.  The applicant was over 20 years of age at the time of his offenses. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for a general characterization of service. 4.  The ABCMR considers every case individually based upon its merits. Granting veteran's benefits is not within the purview of the ABCMR. Any questions regarding eligibility for veterans' benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001620 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001620 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2