BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160004678 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: 4 January 2018 DOCKET NUMBER: AR20160004678 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: 4 January 2018 DOCKET NUMBER: AR20160004678 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 under honorable conditions. 2. The applicant states: a.  He is 53 years old and he enlisted in the military when he was 18 years old. b.  His father and two of his uncles were killed in an automobile accident 4 days after his scheduled departure for basic training. It was his desire to make the military a career when he enlisted, but this dream was cut short as a result of the tragic event. c.  He informed his drill sergeant of the incident and requested to be delayed and/or given the opportunity to be released from the military due to hardship, but he was told no. d.  He again asked his chain of command to be released from the military once he began his training. As the oldest sibling, he needed to return home and assist his mother who was now a single parent and unable to take care of the family without additional financial support that he was able to provide if he returned home. e.  This was an unexpected loss for his entire family and as a young man who was extremely family-oriented, this was an extreme loss. He was unable to continue in the military under these extreme conditions. f.  His chain of command led him to believe that his request for a hardship discharge was being honored and it was not until after his release from active duty that he realized this was not true. g.  He is now well into adulthood and 35 years after the most horrific event in his life occurred. He now asks for favorable consideration of the magnitude of the decision that was made for him without full consideration of the impact it would have on his life. h.  Joining the military was one of the best decisions he made in his life. It is unfortunate and tragic that he was not able to see the full extent of the career that he could have enjoyed, nor was his father alive to witness any portion of his military accomplishment. 3. The applicant provides: * self-authored letter, undated * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Internet extract of Hillsboro, OH, Times-Gazette death notice for W____ C____, dated 7 July 1980 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 U.S. Army Reserve for a period of 6 years under the Delayed Entry/Enlistment Program on 27 March 1980. 3. He provided an Internet extract of a Hillsboro, OH, Times-Gazette death notice, dated 7 July 1980, that shows his father, W____ C____, was killed in an automobile accident on that date. 4. On 10 July 1980, he was honorably discharged from the U.S. Army Reserve Delayed Entry/Enlistment Program for immediate enlistment in the Regular Army. 5. On 11 July 1980, he enlisted in the Regular Army. 6. On 17 October 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 9 October 1980 until on or about 11 October 1980. His punishment consisted of 14 days of extra duty in the Company P area. 7. On 18 February 1981, he accepted NJP under the provisions of Article 15, UCMJ, for being AWOL from on or about 6 January 1981 until on or about 10 February 1981. His punishment consisted of forfeiture of $250.00, which was suspended and directed to be automatically remitted if not vacated before 20 March 1981; restriction to the limits of the mess hall, chapel, medical facility, barracks, place of duty, and routes to and from these areas for 30 days; and 30 days of extra duty. 8. On 6 March 1981, the unexecuted portion of his suspended sentence that directed 30 days of extra duty and 30 days of restriction imposed on 18 February 1981 was remitted. 9. On 11 March 1981, the unexecuted punishment of forfeiture of $250.00 imposed on 18 February 1981, which was suspended for 30 days, was remitted. 10. On 22 May 1981, his duty status was changed from present for duty to confined by civil authorities effective 1800 hours on 22 May 1981. 11. On 1 June 1981, his duty status changed from confined by civil authorities to present for duty. 12. On 3 June 1981, his duty status changed from present for duty to AWOL. 13. On 5 June 1981, his duty status changed from AWOL to hospitalization. He was admitted to a hospital in Cincinnati, OH, due to an injury which was not incurred in the line of duty. 14. On 7 June 1981, his duty status was changed from hospitalization to AWOL/confined by civil authorities. Records show he was picked up by the Highland County prosecutor's office and confined in the Highland County Jail. He was charged with two counts of unauthorized use of a motor vehicle and AWOL. A detainer was placed against him. 15. On 4 September 1981, his duty status changed from AWOL/confined by civil authorities to confined by military authorities. Records show he was arrested by the Hillsboro City Police Department for criminal damage and disorderly conduct. He was released to the Fort Stewart military police after serving 270 days in the Ohio State Reformatory. Additionally, he paid a fine of $217.00 to the Highway County Court, State of Ohio. 16. On 4 September 1981, his duty status was changed to present for duty. 17. A DA Form 2496-1 (Disposition Form), dated 4 September 1981, subject: Background Information, shows his NJP under the provisions of Article 15, UCMJ, in October 1980 and February 1981 and other derogatory information as follows: * forging checks – Savannah – April 1981 * counseling for bad checks – 14 May 1981 * counseling for failing to repair (go to appointed place of duty) and disrespecting a noncommissioned officer – 21 May 1981 * counseling for being in the wrong uniform (rank) – 22 May 1981 * counseling for failing to repair – 24 May 1981 * failing to pay $1,000 for motorcycle – civil – May 1981 * two instances of automobile theft – civil – Ohio – 5 June 1981 * six misdemeanor offenses – civil – 21 August 1981 18. On 10 September 1981, he again accepted NJP under the provisions of Article 15, UCMJ, for being AWOL from on or about 3 June 1981 until on or about 5 June 1981 and from on or about 7 August 1981 until on or about 21 August 1981. Records show he refused to consult with counsel prior to accepting NJP. 19. On 15 September 1981, his duty status changed from present for duty to AWOL. 20. On 14 October 1981, his duty status changed from AWOL to dropped from the rolls. 21. On 14 February 1987, his duty status changed from dropped from the rolls to attached/present for duty. Records show he surrendered to civilian authorities at Greenfield, Ohio, and returned to military control the same date. 22. On 23 February 1987, charges were preferred against him for being AWOL from on or about 15 September 1981 until on or about 14 February 1987. 23. On 24 February 1987 after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser-included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. He understood he might be discharged UOTHC if his request for discharge were accepted and the possible effects of a discharge UOTHC: he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (now Department of Veterans Affairs), he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. 24. His chain of command recommended approval of his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and characterization of his service as UOTHC. 25. On 3 March 1987, the separation authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed characterization of his service as UOTHC and his reduction to the lowest enlisted grade unless he was already serving in that grade. 26. On 26 March 1987, he was discharged accordingly. His DD Form 214 shows he completed 11 months and 2 days of creditable active military service. He accrued lost time during periods 9 October 1981 to 10 October 1980, 6 January 1981 to 9 February 1981, 22 May 1981 to 31 May 1981, 3 June 1981 to 4 June 1981, 7 June 1981 to 3 September 1981, and 15 September 1981 to 13 February 1987. 27. 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.  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. 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. c.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. DISCUSSION: 1. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 2. 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) XX 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004678 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2