RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2008 DOCKET NUMBER: AR20080000300 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Director Analyst The following members, a quorum, were present: Chairperson Member Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his discharge be upgraded and errors on his DD Form 214 (Report of Separation from Active Duty) be corrected. 2. The applicant states he was a very good Soldier always in a pressed uniform and spit shined shoes. He contends he was denied due process at the time of his discharge. He alleges he was escorted to the gate and told that if he returned he would be arrested. He was not given a bus or plane ticket or any money including his pay. He was left stranded outside the gate and did not receive his discharge document until two weeks later. 3. He contends his DD Form 214 incorrectly lists his rank as private (PV1)/pay grade E-1) not private first class (PFC)/pay grade E-3); the discharge indicates he was not available to sign his discharge; and that he is not shown to have completed high school. 4. The applicant provides copies of DD Form 214, a discharge certificate, a Riverside High School Diploma, and his resume. 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 entered active duty on 24 June 1977 and completed training without recorded incident. 3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows: a. on 20 October 1977, for misbehavior, while performing as a sentinel he left his post without being properly relieved; b. on 29 January 1978, for failure to go to his appointed place of duty; and c. on 7 March 1979, for possession of marijuana. Punishment for this infraction included reduction to pay grade E-1. 4. On 4 August 1978 a summary court-martial found the applicant guilty of being disrespectful in language towards a noncommissioned officer. His sentence included reduction to private one (PV1) (E-1) and a forfeiture of $99.00 pay per month for 1 month, and 10 days of hard labor without confinement. 5. On 10 May 1979, general court-martial charges were preferred under the UCMJ for: a. Article 86, for failure to go to his appointed place of duty; b. Article 92, for failure to obey a lawful order from a noncommissioned officer; c. Article 128, for assault with a dangerous weapon or means likely to produce grievous bodily harm or death; and d. Article 134, for communicating a threat to kill a noncommissioned officer. 6. After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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. He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge. 7. The discharge authority accepted the applicant's discharge request and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. 8. The applicant was discharged on 12 September 1979, under other than honorable conditions. 9. The DD Form 214 issued at the time of his separation lists the applicant's pay grade as PV1 (E-1), his educational level as the 11th grade, and his period of service as 1 year, 2 months and 19 days. It also states that the applicant was not available to sign the form. 10. On 9 January 1980, a DD Form 215 (Correction To DD Form 214) was issued correcting the applicant's educational level and periods of service. This resolved the issue of his educational level and it will not be addressed further. 11. The applicant's DD Form 20 (Enlisted Qualification Record) shows he was advanced to PFC on 24 June 1978, reduced to PV1 on 4 August 1978, advanced to PV2 on 1 February 1979, and reduced to PV1 on 7 March 1979. 12. The applicant submits a resume showing completion of a Bachelor Degree of Ministry, Master Degree of Ministry in Bible, Doctor Degree of Ministry in Practical Theology, and other educational diplomas and training. He indicates he has been a practicing minister since September 1986. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 14. The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 128, for assault with dangerous weapon or means likely to produce grievous bodily harm or death. DISCUSSION AND CONCLUSIONS: 1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. 2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 3. There is no indication that the applicant was advanced to PFC (E-3) following his second reduction to PV1 (E-1) on 7 March 1979. Further, had the applicant been in a pay grade above E-1, the discharge authority would have directed that he be reduced E-1 based on his separation under the provisions of Army Regulation 635-200, Chapter 10. 4. The applicant’s post service educational studies and degrees are not sufficient to mitigate the behavior that resulted in his discharge. 5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ ___X_____ ____X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________X____________ CHAIRPERSON ABCMR Record of Proceedings (cont) AR20080000300 2 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET 2ND FLOOR ARLINGTON, VA 22202-4508