BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001739 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION Reinstatement 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001739 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: 26 September 2017 DOCKET NUMBER: AR20160001739 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 under other than honorable conditions discharge to an under honorable conditions (general) discharge. 2. The applicant states: * he is ashamed of this type of discharge * he was never in trouble prior to the incident * he had no idea he was going to be discharged, and was led to believe that he would return to his unit * he was told within 2 years his discharge would be upgraded * he was young, very immature, and from a small town * he was stationed in Germany during the 1960s with racial clashes in his company and squad * he was limited by his inability to speak English * he tried illegal drugs and was busted; he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) * he was entrapped by a dealer that hid drugs under his bed * others were busted and were reduced in rank, forfeited pay, and received extra duty * his first sergeant ordered him to sign papers regarding his discharge * he takes responsibility and knows that he was wrong to associate with those type of people, and has since made amends * he has never been convicted, arrested, drank, or done drugs since his discharge 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 24 October 1972 for a period of 3 years. At the time he was 18 years of age. Upon completion of training he was awarded military occupational specialty (MOS) 76A (Supply Clerk). 3. On 26 March 1973, he was assigned to the 6th Maintenance Company in Germany. On 1 February 1979, he was advanced to pay grade E-4. 4. On 23 May 1974, he accepted NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order, being derelict in the performance of his duties, and being disrespectful in language to a noncommissioned officer. His punishment consisted of a suspended reduction to pay grade E-3, restriction, and extra duty. 5. On 10 July 1974, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 92, for wrongfully possessing a controlled substance (heroin) and wrongfully having in his possession 19 packets of a controlled substance (heroin) with a street value of about $200.00. 6. He consulted with legal counsel on 30 July 1974. The applicant was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged he had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. d. He was also advised that he could submit statements in his own behalf and he elected not to submit a statement. e. The applicant and his counsel placed their signatures on the document. 7. His record contains a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 5 September 1974. These forms show the applicant was found medically qualified for separation or retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). 8. His chain of command recommended approval of his request for discharge with a characterization of service of under other than honorable conditions. 9. The separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that he be issued an Undesirable Discharge Certificate. 10. The applicant's DD Form 214 shows he was discharged on 17 September 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. 11. 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. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses 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 Soldier concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 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. DISCUSSION: 1. The applicant was 18 years of age when he enlisted in the Regular Army. He successfully completed training and he was awarded an MOS. He was advanced to pay grade E-4. There is no evidence of record indicating the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 2. The applicant was charged with wrongfully possessing a controlled substance, an offense that if tried by court-martial could have resulted in a punitive discharge. The applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10. All requirements of law and regulations were met and 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. 3. While the applicant acknowledges he made a mistake in judgment while in service, his actions were punishable by court-martial. In his statement he states he was entrapped by another Soldier. There is no evidence in the available records corroborating his claim. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001739 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001739 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2