AR20150009847

IN THE CASE OF:

BOARD DATE: 14 April 2016

DOCKET NUMBER: AR20150009847

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x____ ___x____ ____x____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 14 April 2016

DOCKET NUMBER: AR20150009847

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 April 2016

DOCKET NUMBER: AR20150009847

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.

2. The applicant states:

* he was an 18-year old young and immature individual at the time; he is now 53 years old and more mature
* he was coerced into accepting an under other than honorable conditions discharge with the understanding that it could be upgraded after 6 months
* he was issued a physical profile that restricted him from standing over 60 seconds and thus was unable to go to the field with his platoon; his lieutenant seemed upset with the doctor’s decision and came to his barracks looking for his roommate
* he opened the door and told him the roommate had left and as he was closing the door, the lieutenant put his arm in (the door) to prevent the door from closing; he was accused of assault
* although he takes full responsibility for his actions, he should not be penalized for 35 years and he simply wants to enhance his quality of life

3. The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Statement of support

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 was born in December 1961 and enlisted in the Regular Army at 17 years and 8 months of age on 29 August 1979. He was trained in and held military occupational specialty 11C (Indirect Fire Infantryman). He was assigned to the 3rd Battalion, 39th Infantry, Fort Lewis, WA.

3. On 8 April 1980, his commander advised him that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following misconduct:

* willfully disobeying a lawful order from his noncommissioned officer (NCO) to draw his weapon and mask
* failing to go at the time prescribed to his appointed place of duty
* being disrespectful in language towards a commissioned officer
* being disrespectful in language toward an NCO
* wrongfully possessing marijuana

4. The applicant, having been afforded the opportunity to consult with counsel, declined accepting the Article 15 and demanded trial by court-martial.

5. On 10 April 1980, his command preferred court-martial charges against him for the following misconduct. His commander recommended trial by a special court-martial empowered to adjudge a bad conduct discharge. His intermediate commander concurred.

* one specification of failing to go at the time prescribed to his appointed place of duty
* one specification of willfully disobeying a lawful order to draw his weapon and mask
* one specification of being disrespectful in language towards a commissioned officer
* one specification of assaulting a commissioned officer by closing a door on his foot
* two specifications of being disrespectful in language toward an NCO
* one specification of wrongfully possessing marijuana

6. On 11 April 1980, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a 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 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), chapter10. In his request for discharge he indicated or acknowledged that:

* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood that by requesting 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 understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could 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

7. He also submitted a personal statement wherein he stated that:

* since he had been assigned to the unit, he had a profile and it became a permanent profile
* he had not been able to do much due to the profile
* his doctor stated that there was no way he should have gotten into the Army with his leg feeling like it did

8. On 15 May 1980, the separation authority approved the applicant’s request for voluntary discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter10, and directed that he receive an under other than honorable conditions discharge and he be reduced to the lowest enlisted grade, if applicable. Accordingly, the applicant was discharged on 3 June 1980.

9. His DDForm214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter10. This form shows he completed 9 months and 5 days of net active service this period. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.

10. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that Board’s 15-year statute of limitations.

11. He submitted a statement of support, dated 15 May 2015. The author states that:

* the applicant entered the “Release to Rent Veterans Program (RTRV)” (transitional housing) in St. Louis
* he was fully cooperative and he had no legal involvements; he kept all his appointments and was an active participant
* he wants his discharge upgraded so he can continue positive progress and life improvement

REFERENCES:

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter10 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, an under other than honorable conditions discharge is normally considered appropriate.

a. Paragraph 3-7a states 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 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION:

1. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter10, are voluntary requests for discharge in lieu of trial by court-martial. After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service.

2. The applicant was 17 years and 8 months of age when he enlisted and over 18 years of age when he committed his offense. Unfortunately, there is no evidence his misconduct was a result of his age and there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their service.

3. Contrary to his contention that he was coerced into accepting the under other than honorable conditions discharge, the evidence clearly shows he acknowledged that he was making this voluntary request of his own free will and had not been coerced. Additionally, his desire to improve the quality of his life is also noted. However, the Army has never had a policy wherein a characterization of service is upgraded due to passage of time.

4. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009847

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009847

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2