IN THE CASE OF: BOARD DATE: 7 December 2017 DOCKET NUMBER: AR20160004287 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. 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. IN THE CASE OF: BOARD DATE: 7 December 2017 DOCKET NUMBER: AR20160004287 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :QAS :LAG :ATD DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 December 2017 DOCKET NUMBER: AR20160004287 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 character of service to general under honorable conditions. 2. The applicant states, in effect, he would like his character of service upgraded. 3. The applicant provides no additional documentary 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 15 February 1979. He held military occupational specialty 13B (Cannon Crewman). Following completion of initial active training, he was assigned to Fort Carson, CO, arriving on 31 May 1979. 3. On 17 August 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave on 7 and 10 August 1979. 4. On or about 29 August 1979, he accepted NJP (twice) for failing to go to his appointed place of duty at the time prescribed on or both 16 and 17 August 1979. 5. On 25 October 1979, the applicant’s commander preferred court-martial charges against him for one specification of assaulting a noncommissioned officer (NCO), eight specifications of disobeying lawful orders of NCOs, and two specifications of communicating threats to NCOs. 6. On 2 November 1979, after consulting with military counsel, the applicant submitted a request for discharge for the good of the Service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. He indicated he was taking this action of his own free will, without coercion from anyone, and he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge. b. He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of many or all benefits as a result of such a discharge. c. He elected to submit a statement in his own behalf, stating, in effect: * he could not adjust to military life; he was having family problems * he was not ready when he joined the military * he was trying to escape his family problems * he wanted to be separated from the Army because his father and his son had died and his mother needed his help * the loss of his first child was "driving [him] crazy" * he was unable to hold the M-60 machinegun at port arms because he was in pain (apparently referring to one of the charges wherein he disobeyed an order to hold an M-60 machinegun) 7. On 16 November 1979, the separation authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions character of service. The applicant was discharged accordingly on 4 December 1979. 8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months and 16 days of net active creditable service, with lost time from 7-10 October 1979. He was administratively discharged under the provisions of chapter 10, AR 635-200, due to conduct triable by court-martial. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) and Expert Marksmanship Qualification Badge with Grenade Bar. 9. On 30 March 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. With his application, he provided letters of support, and asserted he had matured since his separation and deserved a second chance. While the applicant did not appear before the ADRB, counsel represented him. After considering the evidence, the ADRB denied his request on 2 September 1981. REFERENCE: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided 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 at any time after the charges have been preferred. A discharge under other than honorable conditions was normally considered appropriate. b. Paragraph 1-13a stated an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 1-13b stated 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 administratively discharged under the provisions of chapter 10, Army Regulation 635-200, due to conduct triable by court-martial. Discharges under this chapter are based on a voluntary request and the evidence of record shows the applicant voluntarily, willingly, and in writing requested discharge in lieu of trial by court-martial. 2. All requirements of law and regulation appear to have been met and the evidence indicates 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. There is no evidence of error or injustice in the characterization of his service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004287 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004287 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2