BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002630 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: 7 September 2017 DOCKET NUMBER: AR20160002630 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: 7 September 2017 DOCKET NUMBER: AR20160002630 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 (UOTHC) to general. 2. The applicant states his first sergeant and military counsel said he should have received a general discharge. He feels the UOTHC characterization was too harsh of a consequence for his charges. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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. On 16 April 1974, he enlisted in the Regular Army for a period of 3 years. After completion of basic and advanced individual training, he was assigned to Headquarters and Headquarters Company, 2d Battalion, 41st Infantry Regiment, 2d Armored Division, Fort Hood, TX. 3. On 16 June 1975, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possessing one ounce, more or less, of marijuana at Wildflecken Training Area, Germany, on or about 3 June 1975. 4. On 19 August 1975, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to obey a lawful order from a noncommissioned officer at Wildflecken Training Area, Germany, on or about 18 August 1975. 5. On 14 April 1976, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to obey a lawful order from his superior commissioned officer at Fort Hood, TX, on or about 11 April 1976. 6. On 25 June 1976, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to obey a lawful order from his superior commissioned officer at Fort Hood, TX, on or about 22 June 1976. 7. On 29 June 1976, he was counseled in writing by his company commander for his conduct. His company commander stressed that his continued behavior might result in initiation of action to eliminate him from the service as unfit or unsuitable for continued service. 8. On 8 July 1976, his company commander recommended him for elimination from the service for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5. 9. On 9 July 1976, he requested a rehabilitative transfer from Headquarters and Headquarters Company, 2d Battalion, 41st Infantry Regiment, to 1st Battalion, 16th Field Artillery Regiment. 10. On 14 July 1976, he was notified of his recommended elimination from the service for misconduct under the provisions of Army Regulation 635-200, chapter 13. His chain of command approved the recommendation for elimination and his request for rehabilitation was waived. 11. On 19 July 1976, he was counseled in writing for failure to perform assigned duties and failure to report to his designated duty area. 12. On 19 July 1976, he was advised by counsel of the basis for contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 13. He requested a personal appearance hearing by a board of officers. He also requested counsel. He indicated he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued. He further understood his discharge would be under conditions other than honorable if he were issued an undesirable discharge. As a result of such a discharge, he could be deprived of many or all rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. 13. On 20 July 1976 his company commander requested separation board action against him for his history of insubordination. He recommended denial of a rehabilitation transfer request and the applicant's discharge for misconduct under the provisions of Army Regulation 635-200, chapter 13. The commander stated: * the applicant is of no use to the service at this time as his previous record shows four nonjudicial punishments under the provisions of Article 15, UCMJ * he exerts his efforts toward getting out of work and has a history of insubordination toward his superiors * his record of offenses support he is a bad Soldier who constantly is either initiating or supporting problems within his section and this unit 14. On 30 July 1976, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for behaving with disrespect towards a commissioned officer at Fort Hood, TX, on or about 19 July 1976 and being derelict in the performance of his duties on or about 23 July 1976. 15. On 7 September 1976, he appeared before a board of officers to determine whether he should be discharged before the expiration of his term of service under the provisions of Army Regulation 635-200, paragraph 13-5. The board found his term of service to be characterized by misconduct, deeming no further retention in the Army. His rehabilitation was not deemed possible. The board recommended his elimination from the service with the issuance of an Undesirable Discharge Certificate. 16. On 4 October 1976, the approval authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5a. He directed the applicant's reduction to the rank of private/E-1 and the issuance of an Undesirable Discharge Certificate. 17. On 22 October 1976, he requested a copy of his DD Form 214 but declined to receive a separate document explaining the narrative description of the authority for separation and reenlistment code. 18. Headquarters 2d Armored Division, Fort Hood, TX, Orders 133-358, dated 10 November 1976, reduced him to the rank of private/E-1. 19. Headquarters, III Corps and Fort Hood, Fort Hood, TX, Orders 97-6, dated 15 November 1976, discharged him effective 18 November 1976. 20. Headquarters, III Corps and Fort Hood, Fort Hood, TX, letter, dated 18 November 1976, explained the process for requesting a review by the Army Discharge Review Board. 21. His DD Form 214 shows he was discharged effective 18 November 1976. He completed 2 years, 7 months, and 3 days of total active service. His service was characterized as UOTHC. 22. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. b.  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's records reveal a history of misconduct, including five instances of nonjudicial punishment under the provisions of Article 15, UCMJ. 2. His chain of command believed he was unable to adjust to military life and initiated separation action against him for misconduct. 3. There is no evidence indicating he was improperly and inequitably discharged in accordance with regulatory guidance. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002630 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002630 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2