IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004924 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 IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004924 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. IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004924 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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC). 2. The applicant states: a. His enlistment contract was voided. His first military occupational specialty (MOS) was Computer Programmer and his second MOS was Automotive Repairman. b. He volunteered for the Army and took the 3-hour Armed Services Vocational Aptitude Battery (ASVAB), which he passed with a score of 98 percent. He was later told he copied the test as the score revealed his intelligence quotient (IQ) was higher than that of a 4-year college graduate. c. He left Little Rock, AK, for Fort Jackson, SC, where he was placed in Company D for basic combat training (BCT). When he got out of the "cattle car" the first day at BCT, he watched two college graduates have nervous breakdowns. He trained the first squad throughout BCT, had the highest honor squad in Company D, and was acting corporal on the second day of BCT and later made acting sergeant over the 1st Squad. He completed the rifle range training and physical training. He had two great drill sergeants. d. Two days before graduating, he was asked to retake the ASVAB he initially took to enlist in the Army. His squad was taken from him and given to a white Soldier, while he was sent to a special training camp. There were only Japanese and Puerto Rican Soldiers in the special training camp. He had to learn their language and how to communicate with them, but he made it through. e. After the success of finishing that camp, he was then considered a spy, so he wanted to get out of the Army. He wasn't given any opportunities because he was "not supposed to be smart" – and that hurt because he was trying to be a good Soldier. He was finally let into the Army after he found out he could enlist in another branch with his ASVAB scores. His MOSs were computer programming and automotive engineering. f. His ambition to "Be All You Can Be" became take all that you know and put you where you're supposed to be. The Army violated his contract and that is why he wanted to get out of the Army. g. His grandparents raised him and by the age of 10 he was working to buy his own school clothes and supplies. His grandparents had five grandchildren to raise. His grandfather let him know that he was doing the best he could for him, so he learned early to be responsible. That is what made his IQ much higher than others'. He believes and trusts in God. He is in need of help. 3. The applicant provides his DD Form 214. 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 under the Delayed Enlistment Program on 30 September 1976. 3. His DD Form 1966 (Application for Enlistment – Armed Forces of the United States) shows, in part: * the results of his mental and aptitude examination taken on 28 September 1976 were 47 percent * his projected active duty date was 4 October 1976 * he enlisted under the provisions of the U.S. Army Training of Choice Program and was assured of attending training for MOS 63H (Automotive Repairman) 4. His DD Form 4 shows he requested discharge from the U.S. Army Reserve for the purpose of enlistment in the Regular Army on 4 October 1976. There is no evidence of record his enlistment contract was voided or violated, or he was ever assured of or given training in any MOS other than 63H. 5. His records contain a DD Form 458 (Charge Sheet), dated 6 May 1977, showing he was charged with being absent without leave (AWOL) from Special Training Company, BCT Committee Group, Fort Jackson, SC, from on or about 7 January 1977 until on or about 27 April 1977. 6. On 6 May 1977, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge UOTHC, and the procedures and rights available to him. He acknowledged that he 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 did not submit a statement in his own behalf. 7 On 6 May 1977, his immediate commander recommended approval of his request. He indicated the applicant was AWOL for 110 days and was apprehended by Federal authorities. He stated he applicant could not adjust to military life and rehabilitation efforts were considered futile. He recommended a discharge UOTHC. 8. On 16 May 1977, the officer exercising general court-martial convening authority approved the applicant's discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He directed the applicant's reduction to the lowest enlisted grade and a discharge UOTHC. 9. His DD Form 214 shows he was discharged on 23 May 1977 under the provisions of Army Regulation 635-200, chapter 10. He completed 4 months and 2 days of active service during this period with 110 days of lost time. His service was characterized as UOTHC. 10. There is no evidence indicating 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. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized sentence 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 UOTHC 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 provides 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. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10. The evidence shows he was charged with being AWOL from 7 January 1977 until on or about 27 April 1977. This offense is punishable under the Uniform Code of Military Justice and could have resulted in a punitive discharge. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge from the Army to avoid trial by court-martial. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 3. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 4. Although he claims his enlistment contract was voided or violated, there is no evidence of record suggesting this was the case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004924 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004924 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2