IN THE CASE OF: BOARD DATE: 11 January 2018 DOCKET NUMBER: AR20160005660 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: 11 January 2018 DOCKET NUMBER: AR20160005660 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: 11 January 2018 DOCKET NUMBER: AR20160005660 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 character of service. 2. The applicant states upon his reenlistment at Fort Hood, TX, he was picked on by a noncommissioned officer. He further claims he got into trouble when he became an alcoholic and drug user; however, no one at the installation would help him. 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. Having served 2 years, 6 months and 3 days of total prior active service, the applicant reenlisted in the Regular Army (RA) on 11 August 1980. 3. His record contains Summary Court-Martial Order Number 1, issued by Headquarters, 169th Maintenance Battalion (General Support), 13th Support Command (Corps), Fort Hood, TX, dated 20 January 1981, which states, pursuant to Court-Martial Convening Order Number 1, this headquarters, dated 15 January 1981, the applicant was arraigned and tried on the following offenses and the following findings and dispositions were reached: a. Charge 1 – Guilty, of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by on or about: (1) 7 January 1981, without authority, fail to go at the time prescribed to his appointed place of duty; (2) 8 January 1981, without authority, fail to go at the time prescribed to his appointed place of duty; (3) 9 January 1981, without authority, fail to go at the time prescribed to his appointed place of duty; and (4) 11 January 1981, without authority, fail to go at the time prescribed to his appointed place of duty. b. Charge 2 – Guilty, of violating Article 91 of the UCMJ by on or about: (1) 9 January 1981, using disrespectful language toward his superior noncommissioned officer; and (2) 9 January 1981, willfully disobey a lawful order. c. The court sentenced him to be reduced to the grade of E-1 and confinement for 30 days of hard labor. The sentence was adjudged 20 January 1981. The convening authority approved the applicant?s sentence and ordered it executed the same day. 4. On 28 October 1982, court-martial charges were preferred against the applicant for violating Article 86 of the UCMJ by, without authority, absenting himself from his organization for the period 2 June to 26 October 1982. 5. On 29 October 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he 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. 6. In his request for discharge, he acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person. He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He acknowledged he understood if his discharge request were approved, he may be deprived of many or all Army benefits. He acknowledged he may be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions character of service. A statement in his own behalf was not submitted with his request. 7. On 4 November 1982, his immediate commander recommended approval of his request and issuance of a discharge under other than honorable conditions. His immediate commander stated the applicant had been unable to adjust to military life and rehabilitation efforts were considered futile. 8. On 16 November 1982, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 30 November 1982, he was discharged accordingly. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 1 year, 11 months and 8 days of net active service during this period with time lost for the periods 20 January to 12 February 1981 and 7 July to 25 October 1982. 10. The applicant provides no evidence and his records contain no evidence which shows he was picked on, used drugs or became an alcoholic while serving in the RA. 11. 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 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions 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 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's contention that the character of his service should be upgraded was carefully considered. The applicant contends that the Board should upgrade his discharge because he was picked on, used drugs and became an alcoholic. 2. A review of his record shows during a summary court-martial he was found guilty of multiple violations of the UCMJ including failing to go at the time prescribed to his appointed place of duty on numerous occasions. He then left his unit and was absent from 2 June to 26 October 1982. Upon his return to military control, he was charged with the commission of a serious offense(s) punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. If he had requested a trial by court-martial, the maximum punishment he could have received was a punitive discharge. By voluntarily requesting an administrative discharge, he avoided a potential punitive discharge. 3. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors, which may have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. There is no available evidence corroborating his claim that he was picked on and used drugs or became an alcoholic. His record does show he was disrespectful to a superior and disobeyed an order for which he was tried by a summary court-martial and found guilty. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005660 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005660 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2