BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006656 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 10 April 2018 DOCKET NUMBER: AR20160006656 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 his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. In addition, he requests a personal hearing before the Board. 2. The applicant states: a. He has lived 40 years with shame and embarrassment. He feels that he has let himself down, but most importantly, he let his country down. He was 17 years old when he joined the Army. He was proud and thought he belonged. b. Once he arrived at his permanent duty station in Germany, things began to go badly. He shouldn't have joined given his lack of maturity at the time, but he also believes getting an undesirable discharge was harsh for what happened to him as an immature kid. c. As he got older, he began to care about his legacy. It is time for him to try to fix it. He is not asking for any benefits, just a change in status so that he can complete his journey. He is 58 now and asks for forgiveness. He is not the same person who was discharged in 1976. Despite many disadvantages, setbacks and struggles, he achieved the American dream. d. He would like to emphasize that he does not seek, nor will he seek, any benefits as a result of any change of status. The Board's approval is only sought in order to reflect the person that he is today: a responsible, productive, law abiding citizen. He contributes to worthy causes and charities, he votes in every election, and he performs his civic duties. e. After his discharge, he was a high school dropout who had just been discharged from the Army as an undesirable with no skills. Today, he is a U.S. citizen, and holds a Bachelor's Degree in Marketing. He has been in the field of information technology since 1977. He is in the top 3 percent in the U.S. and he works for a well-known telecom company. He holds a patent in computer networking and delivering content to remote hosts, which Epson America since purchased. He raised two kids; one holds a Masters in Mathematics and is employed by a big data company in Seattle and his younger son lives in Chicago with his fiancée and is currently working in the retail market. His life has changed; it could have gone wrong but it has changed. 3. The applicant provides no additional evidence in support of his request. 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 19 November 1974, four days after his 17th birthday. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 11E (Armor Crewman). 3. DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) show the applicant received non-judicial punishment (NJP) on the following dates for the following violations of the UCMJ: * on 22 September 1975, for violating Article 90 of the UCMJ, specifically for willfully disobeying a lawful order from a commissioned officer on or about 16 September 1975 * on 17 November 1975, for violating Article 134 of the UCMJ, specifically for possessing hashish on or about 9 November 1975 4. The applicant's discharge packet is not available for review; however, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 17 February 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His DD Form 214 further shows he was discharged in the rank/grade of private (PV1)/E-1 and his service was characterized as UOTHC. 5. The Army Discharge Review Board (ADRB) reviewed the applicant's discharge on 8 February 1979, determined it was both proper and equitable, and denied his request for an upgrade. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The applicant's record is void of the specific facts and circumstances surrounding his discharge. However, it appears he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, after which he was discharged under the provisions of Army Regulation 635-200, chapter 10. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service during his enlistment. The characterization of service he received was commensurate with the authority for his discharge. 3. An honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions (general) characterization of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. 4. The applicant's post-service conduct is noted. Post-service conduct alone is not normally a basis for changing a characterization of service. 5. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence is sufficient to render a fair and equitable decision at this time without a personal appearance. BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006656 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006656 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006656 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2