SAMA-RB 9 June 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160002317 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 11 May 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 10 October 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160002317 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: 11 May 2017 DOCKET NUMBER: AR20160002317 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: 11 May 2017 DOCKET NUMBER: AR20160002317 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 characterization of service from under other than honorable conditions to honorable. 2. The applicant states, in effect, during his term of service his wife suffered a miscarriage of their son, and at the time he was not in his right mind. This caused him to disobey an order for which he wants to apologize to the United States Army. He further states, during President Carter's term in office he signed the "Veterans Benefits Statement on Signing S.1307 into Public Law 95-126, approved 8 October 1977." 3. The applicant provides no additional evidence. 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 30 November 1972. 3. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 13 January 1973, for without authority failing to go at the time prescribed to his appointed place of duty * 28 February 1973, for failure to repair 4. His record contains a DD Form 458 (Charge Sheet), dated 30 July 1974, which shows court-martial charges were preferred against him for: * without authority, going from his appointed place of duty on or about 1900 hours, 24 July 1974 * without authority, failing to go at the time prescribed to his appointed place of duty on or about 0730 hours, 26 July 1974 * without authority, failing to go at the time prescribed to his appointed place of duty on or about 0730 hours, 30 July 1974 * willfully disobeying a lawful order from a superior commissioned officer on or about 1100 hours, 30 July 1974 5. On 19 August 1974, the applicant met with counsel and he voluntarily requested discharge for the good of the service under the provisions of Chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), in lieu of trial by court-martial. He acknowledged he understood he could request 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 stated he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. 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 and the elements of the offenses with which he was charged. 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 and furnished an Undesirable Discharge Certificate. He also acknowledged he had been advised and understood the possible effects of an undesirable 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 might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him. c. He acknowledged he understood that once he submitted his request, he could withdraw it with the separation authorities' consent or, without the separation authorities consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. The applicant provided a self-authored statement in support of his request for discharge in which he claimed due to his accepting the religion of Islam, as a Muslim, he could no longer participate in further military service. 6. On 30 August 1974, 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 24 September 1974, he was discharged accordingly. 7. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 1 year, 9 months, and 25 days of creditable active service with no lost time. 8. On 13 July 1976, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He claimed he was deceived and misinformed in his search for the truth of all things. He did not mention his wife's miscarriage as an underlying reason for his misconduct. On 9 February 1978, the ADRB informed him that he was properly discharged. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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 3-7a provides that 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. 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. 2. On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DOD Special Discharge Review Program (SDRP), required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual. 3. In October 1978, Public Law 95-126 was enacted. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required. Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review. DISCUSSION: 1. The applicant appears to contend his discharge should be upgraded under the DOD SDRP so he may qualify for VA benefits. On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. After review of the applicant's official military personnel file, it is apparent the DOD SDRP does not apply to his September 1974 undesirable discharge. 2. The applicant's record shows he was charged with the commission of an offense 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. 3. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation 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. 4. 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. 5. 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. 6. The ABCMR does not normally correct records solely for the purpose of establishing eligibility for other programs or benefits. There is no evidence of error in the separation authority's determination that his service would be characterized as under other than honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002317 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002317 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2