BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160004194 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: 29 August 2017 DOCKET NUMBER: AR20160004194 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: 29 August 2017 DOCKET NUMBER: AR20160004194 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 fully honorable. 2. The applicant states, in effect, his discharge should be upgraded. 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 was inducted into the Army of the United States on 2 December 1971 and he held military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman). He was honorably released from active duty on 26 November 1973. His DD Form 214 (Report of Separation from Active Duty) for this period shows he completed 1 year, 11months, and 25 days of active service. 3. He enlisted in the Regular Army on 5 September 1975 and he held MOS 13F (Fire Support Specialist). He was honorably discharged on 24 August 1978 for immediate reenlistment. His DD Form 214 for this period shows he completed 2 years, 11 months, and 20 days of active service. 4. He reenlisted in the Regular Army on 25 August 1978. He was promoted to staff sergeant/pay grade E-6 on 24 June 1980 and he served in Alaska from on or about 5 November 1982 to on or about 15 September 1983. 5. Around September 1983, court-martial charges were preferred against the applicant. The DD Form 458 (Charge Sheet) is not available for review with this case; however, it appears that his chain of command preferred court-martial charges against him for violation(s) of the Uniform Code of Military Justice (UCMJ). 6. On 6 September 1983, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, the applicant requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged: a. he was making this request of his own free will and he had not been subjected to any coercion by any person, and he had been advised of the implications that were attached to his request; b. he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge; c. under no circumstances did he desire further rehabilitation for he had no desire to perform further military service; d. he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws; e. he understood he could expect to encounter substantial prejudice in civilian life; and f. he elected not to submit a statement in his own behalf. 7. The battalion assistant adjutant recommended approval of the discharge action with the issuance of a general discharge. He opined that the applicant had demonstrated that he was not the quality Soldier desired by the Army and his separation was in the best interest of the Army. 8. The applicant's intermediate commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. He opined that the applicant was a liability to any unit to which he was assigned and exhibited absolutely no future potential. 9. His senior commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. He opined that the applicant had no potential for continued service. 10. On 7 September 1983, the separation authority approved the applicant's voluntary request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and directed the applicant be reduced to the lowest enlisted grade, if applicable, and furnished an Under Other Than Honorable Conditions Discharge Certificate. Accordingly, the applicant was discharged on 15 September 1983 and reduced to private/pay grade E-1. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service – in lieu of trial by a court-martial with an under other than honorable conditions characterization of service. He completed 5 years and 21 days of active service this period. He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * National Defense Service Medal * Expert Infantryman Badge * Noncommissioned Officer Professional Development Ribbon (Numeral 2) 12. There is no indication he petitioned the Army Discharge Review Board for a review of this discharge processing within that board's 15-year statute of limitations. REFERENCES: AR 635-200, in effect at the time set 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, an undesirable discharge is normally considered appropriate. b. Paragraph 3-7a states 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. DISCUSSION: 1. The applicant appears to have been charged with the commission of an offense or offenses punishable under the UCMJ with a punitive discharge. (The charge sheet is not filed in his record.) Discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. Based on the applicant's record of indiscipline, the separation authority determined that during the referenced period, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel and did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004194 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004194 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2