IN THE CASE OF: BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160009182 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 IN THE CASE OF: BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160009182 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 2. The applicant states: a. He did not commit the whole act as it was stated at the time. The other person involved was coerced and maliciously forced to speak against him at the time. However, they continued a relationship long after that day. He was young, scared of the alternative given, and received inadequate counsel. The bad discharge was too harsh of a punishment at the time or any time for the alleged offense. b. He asks for leniency. The last 38 to 40 years has been a struggle to make a living. He has been turned away from jobs he is good at and dealing with many other obstacles his discharge has caused. He continues to love and serve his country. He has served as security, working alongside the Secret Service for three Presidents of the U.S. and one Vice President of the U.S., as well as having convinced several young men and women to serve in the Armed Forces. 3. The applicant provides a self-authored statement. 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. On 30 September 1976, the applicant enlisted in the Regular Army at the age of 20 for a period of three years. 3. On 22 March 1977, the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). On or about 0600 hours, 14 March 1977, he did, without authority, absent himself from his place of duty. 4. On 14 April 1977, the applicant was assigned to 608th Ordnance Company, Fort Benning, Georgia. 5. A DD Form 458 (Charge Sheet), dated 27 February 1978, shows: a. Charge I: Violation of the UCMJ, Article 128, with the specification that he did, on or about 12 February 1978, unlawfully strike a female on her head and chest with closed fists. b. Charge II: Violation of the UCMJ, Article 134, with the specification that he did, on or about 13 February 1978, wrongfully have in his possession marijuana. 6. On 18 May 1978, he requested to be discharged for the good of the service, in lieu of trial by court martial. His request shows: a. He understood that he may request discharge for the good of the service because of charges preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge. b. He made the request of his own free will and had not been subjected to any coercion whatsoever by any person. He was given advice of the implications that are attached to it and by submitting the request he understood the elements of the offenses charged and he was guilty of the charges against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. Moreover, under no circumstances did he desire further rehabilitation and he had no desire to perform further military service. c. He consulted with counsel and was fully advised of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at that time, and the maximum permissible punishment if found guilty. Although he was furnished legal advice, the decision was his own. d. He understood if his request for discharge was accepted he could be discharged UOTHC and furnished a UOTHC discharge certificate. He was advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge: (1) He could be deprived of many or all Army benefits and he may be ineligible for many or all benefits administered by the Veterans Administration. (2) He understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws. (3) He understood he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge. e. The applicant did not submit statements in his own behalf with his request. 7. On 24 May 1978, his immediate commander recommended approval of his request for discharge and with a characterization of UOTHC. 8. On 19 June 1978, the appropriate authority approved the request for discharge for the good of the service, directing the applicant be reduced to private/E-1 and his service be characterized as UOTHC. 9. On 14 July 1978, the applicant was discharged for the good of the service in lieu of trial by court-martial. His service was characterized as UOTHC. He completed 1 year, 9 months, and 15 days of net active service. 10. The applicant's record is void of 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 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. The request could be submitted at any time after the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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 contends he was young, received inadequate counsel, and the punishment he received was too harsh for the alleged offense. 2. The applicant’s age at time of his enlistment was noted. However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges. There is no evidence indicating he was less mature than his peers. Age is not normally a mitigating factor used as a basis for changing a properly issued discharge. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge 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) AR20160009182 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009182 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2