BOARD DATE: 29 August 2018 DOCKET NUMBER: AR20160018133 BOARD VOTE: ____x____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 August 2018 DOCKET NUMBER: AR20160018133 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 with the service characterization block showing his service was characterized as under honorable conditions (general). ____________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: 29 August 2018 DOCKET NUMBER: AR20160018133 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 under other than honorable conditions discharge to a general discharge and a personal appearance before the Board. 2. The applicant states: a. He was too ashamed to attempt a change. He was very patriotic when he joined the Army. An American flag flies at his home to this day. His uncles served multiple tours in Vietnam. This left an impression on him of wanting to do his part for his country. He comes from proud American families very supportive of their military. b. Prior to his 17th birthday, he already had multiple driving under the influence arrests. He did not know how huge his problem was. He thought that maybe he just needed direction and discipline in his life. For the first time in a long time, he felt hope that maybe the Army would be good for him. The Army was good for him, it just did not solve his alcohol problem. He did not know how to request help and he did not even know he needed help. He did the best he could. As long as he stayed away from alcohol it was not too bad. He would go into town when he was granted leave and he could barely made it back to base after drinking. c. When he went home on leave for Christmas, he stayed drunk the entire time. He was drunk at the airport leaving Fort Polk, LA, and missed his connecting flights all the way home. When his leave was over, he could not stay sober long enough to remember his flight back to Fort Polk. He was ashamed that he was absent with leave (AWOL). The guilt and the shame kept him from returning. One day led to another until he was arrested and sent to Fort Campbell, KY. The officers at Fort Campbell stated that it would be best if he processed out; in shame, he agreed. He thought he was receiving a general discharge. He would have never agreed to an undesirable discharge. He was never asked if he had a problem and he did not know how to tell them that he had a drinking problem. He did not know he was sick, he thought he was damaged. d. He has been clean and sober for 21 years. His life until then was filled with drinking, drugging, jails, hospitals, institutions, and homelessness. It has taken him a long time to recover. At this point in his life, he is attempting to amend himself as well as others. 3. The applicant provides his chapter 10 discharge packet, DD Form 214 (Report of Separation from Active Duty), and a letter of support. 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 2 October 1974, for a period of 3 years. He did not complete advanced individual training for award of a military occupational specialty (MOS). 3. On 5 January 1975, his duty status was changed from ordinary leave to AWOL. The personnel action stated he departed on leave on 19 December 1974. On 3 February 1975, he was dropped from the unit rolls. On 3 April 1975, he was appended by civilian authorities and returned to military control. 4. On 10 April 1975, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Campbell, KY. The applicant was charged with one specification of being AWOL from 5 January to on or about 3 April 1975. On 11 April 1975, court-martial charges were preferred against him for the AWOL period. 5. On 11 April 1975, after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected to submit a statement in his own behalf. 6. In his statement, the applicant stated, the reason he wanted out was because he had problems at home. He did not like the Army after joining, but he was going to attempt to stay enlisted. When he went home on leave, the problem surfaced. It was an excuse to tell people the reason he went AWOL, but he really does want out of the Army. 7. On 11 April 1975, his chain of command recommended approval of his request. 8. On 22 April 1975, the separation authority approved his voluntary request for discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1. 9. On 20 May 1975, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. His DD Form 214 shows he completed 4 months and 20 days of active service with 88 days of time lost. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. 10. There is no indication he petitioned the Army Discharge Review Board within its 15 years statute of limitations for an upgrade of his discharge. 11. He provides a letter, dated 11 July 2016, wherein an individual attested to the fact the applicant was one of his greatest most trusted friends. The applicant and he were both active in a 12-step recovery program. The applicant's commitment to his family and their wellbeing had been constant. In short, the applicant adopted a whole new way of life with vigor and tenacity and should be credited accordingly. REFERENCES: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 2. His brief record of service shows he did not complete advanced individual training for award of an MOS and included 88 days of time lost. At the time of his request for discharge, he provided a statement, wherein he states that he went AWOL due to family problems. He also acknowledged he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. 3. The separation authority approved his discharge and he was discharged accordingly. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights. It appears, the separation authority determined his service did not rise to the level required for a general or an honorable discharge. 4. The applicant requested a personal appearance before the Board. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the available evidence was sufficient to render a decision without the need for a personal appearance hearing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160018133 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018133 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2