RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080000486 


	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.









      The following members, a quorum, were present:













	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:  (a) his discharge, characterized as under other than honorable conditions (UOTHC), be changed to an honorable discharge; (b) correction of his military records; (c) back pay and allowances;   (d) constructive service credit; (e) retroactive promotions; (f) retirement status; and (g) award of an Army Apprenticeship Program (AAP) completion certificate for MOS (military occupational specialty) 63B3O, Wheel Vehicle Mechanic.

2.  The applicant states, in effect, that he has a sworn statement from a former retired Soldier stating that another Soldier told him she was coerced by the NCOIC (noncommissioned officer in charge) of transportation into making a false statement against him.  He states that this incident took place in front of two NCOs. 

3.  The applicant provides several copies of documents from his OMPF (official military personnel file) such as Article 15s, under the Uniform Code of Military Justice (UCMJ); courts-martial orders; charges; DD Form 214 (Certificate of Release or Discharge from Active Duty); and a copy of his separation proceedings 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's record shows he enlisted in the Regular Army on 17 January 1973.  He was trained as a Radio Teletype Operator, in MOS, 05F.  He was promoted to SP4/E-4 effective 1 April 1974.  He served until he was honorably discharged on 2 February 1975 for immediate reenlistment.  He reenlisted on 3 February 1975.  


3.  The applicant was convicted by a special court-martial on 20 January 1975 of making the signature of an NCO, with intent to defraud (8 specifications) and of wrongfully having in his possession the military pass and the identification card of an NCO, with intent to deceive.  His sentence consisted of a forfeiture of $250.00 pay for 4 months and 14 days restriction.  The sentence was approved and except for forfeiture of pay in excess of $150 for 3 months, (suspended and remitted without further notice), was ordered duly executed.  

4.  The applicant was convicted by a special court-martial on 27 April 1976, of the wrongful possession and use of marijuana on 24 February 1976.  His sentence consisted of a reduction to pay grade E-3, a forfeiture of $150.00 pay for 2 months, and 45 days extra duty.  

5.  On 21 October 1976, the applicant was punished under Article 15, UCMJ, for violating a lawful general regulation and for leaving his weapon unsecured and unguarded.  His punishment consisted of a forfeiture of pay. 

6.  The applicant served until he was honorably discharged on 29 December 1980 for immediate reenlistment.   He reenlisted on 30 December 1980, in MOS 63B, Light Wheel Vehicle Mechanic, for 3 years, with an established expiration of term of service (ETS) of 29 December 1983. 

7.  The applicant was promoted to staff sergeant (SSG/E-6) effective 6 May 1981. 

8.  On 12 November 1981, the applicant was punished under Article 15, UCMJ, for wrongful possession of marijuana.  His punishment consisted of a reduction to pay grade E-5 (suspended for 90 days) and a forfeiture of pay. 

9.  On 29 March 1983, the Department of the Army CY83 (Calendar Year) Sergeant First Class Promotion Board, after a comprehensive review of the applicant's Official Military Personnel File (OMPF), determined that he should be barred from reenlistment under the Qualitative Management Program (QMP).  The basis for the determination were his two special courts-martial and two Article 15s, under the UCMJ.  He was advised of his options.

10.  On 13 June 1983, the applicant appealed the bar to reenlistment through his chain of command.  He elaborated on his military career and accomplishments and the events that occurred during his career.  He indicated that he was enrolled in the AAP for the MOS 63B and now only needed 340 hours of work and 163 hours in related subjects to receive his certification of journey worker in the trade of Auto Mechanics.  
11.  On 24 June 1983, the Installation Transportation Officer (ITO) requested 
that disciplinary action be taken against the applicant.  He indicated that several NCOs who were members of a mission to convoy new vehicles from Pusan to Seoul had accused the applicant of failing to follow the NCOIC’s instructions for the mission and recklessly endangering life and property by violating regulations by making an unauthorized U-turn on the Seoul/Pusan Expressway.  The statements by the NCOs were reliable, competent, and of integrity.  They were considered but rejected at the ITO's level.  The ITO recommended to the Commander that the applicant be considered for disciplinary action in accordance with the provisions of the UCMJ.  

12.  On 18 July 1983, the applicant's appeal of his DA imposed bar to reenlistment was denied.  The Commander stated that the applicant had not demonstrated that he possessed the necessary qualities or potential to remain in today's Army.  His rebuttal did not address the two courts-martial nor the two Article 15s that were the basis for his selection for bar to reenlistment under the QMP.  The applicant was at the time pending additional action under Article 15 by the Commander.  In the commander's opinion, his inattention to detail was clearly demonstrated by the submission of his rebuttal over 3 weeks after the required suspense date without explanation.

13.  Charges were preferred against the applicant on 19 August 1983 for being derelict in the performance of his duties; for disobeying a lawful order from an NCO, on two occasions; and for operating a government vehicle in a reckless manner, while serving in Korea, on 17 June 1983. 

14.  The applicant provided copies of several sworn statements prepared by former Soldiers who served with him.  One of the undated statements prepared by a retired NCO states that in the early part of November 1983, he was approached by another NCO, a female, concerning being coerced into making a harmful statement against the applicant.  This statement was made in front of two NCOs.  Additional sworn statements describe in detail the incident that took place on 17 June 1983.

15.  Charges were preferred against the applicant on 29 August 1983 for being absent without leave (AWOL) from 15 to 18 July 1983 and for the wrongful appropriation of a 1/2 ton, 4x4 utility truck, on 15 July 1983, while he served in Korea.

16.  On 27 September 1983, the Reenlistment Appeals Board denied the applicant's appeal of his bar to reenlistment.  The board stated that the bar to reenlistment would remain in effect.  Their denial was based on the applicant's 
marginal performance as reflected by his long history of incidents of nonjudicial punishment, especially in current grade.  His overall performance, conduct and potential did not meet the standards expected of a Soldier with his grade and experience.  The board indicated that the applicant would be separated at his current ETS.

17.  On 6 October 1983, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA) if a discharge characterized as UOTHC were issued.  The applicant consulted with counsel and elected to submit a statement in his own behalf.

18.  On 14 October 1983, the separation authority approved the applicant's request for discharge and directed that he be furnished an UOTHC discharge and that he be reduced to the lowest enlisted grade.  

19.  On 1 November 1983, the applicant requested to withdraw his request for discharge.  He provided a detailed explanation of the events that were previously discussed.  He requested that he be allowed to stand trial to prove his innocence in this matter and that he would like to remain until his ETS, of 29 December 1983.  He felt like his 11 years in the Army were not in vain.

20.  The applicant was discharged in the rank/pay grade, Private/E-1, on 10 November 1983.  He had a total of 10 years, 9 months, and 24 days of net active service and 3 days of time lost.

21.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 13 September 1984.  

22.  On 18 March 1985, the applicant sought assistance for his case through the United States District Court, Western District of Kentucky at Paducah.  He indicated, in detail, the basis for his claim.   

23.  On 29 April 1985, the Deputy Assistant Secretary (Department of the Army Review Boards, Personnel Security and Equal Employment Opportunity Compliance and Complaints Review) informed the United States District Court, Western District of Kentucky at Paducah, that the applicant had not filed an application for relief with regards to his claimed wrongful 1983 discharge.


24.  On 14 November 1985, the ADRB denied the applicant's petition to upgrade his discharge.

25.  Army Regulation 635-200 sets forth the basic authority for 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.

26.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

27.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

28.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 of that regulation sets policies and procedures for voluntary retirement of Soldiers because of length of service.  

29.  Paragraph 12-3 pertains to general provisions of laws governing retirement.  It states, in pertinent part, that years of service for retirement are computed by adding all AFS in the Armed Forces and service computed under Title 10, United States (US) Code, Section 3925.  For Regular Army, ARNGUS, and USAR Soldiers retiring from an AD status, the date of retirement is the first day of the month in which the Soldier is released from AD.  For ARNGUS and USAR Soldiers not on AD, the date of retirement is the first day of the month following the month in which retirement orders are issued. 



30.  Paragraph 12-4, implements Title 10, United States (US) Code, section 3914 which governs 20-year retirement by a Soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve.  In pertinent part, the regulation provides that a request for retirement may be submitted by a Soldier who has completed 20 years, but less than 30 years, of AFS in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a pattern of misconduct. He received two special courts-martial and two Article 15s.  He was barred from reenlistment under the QMP based on these courts-martial and Article 15s.  He appealed his bar to reenlistment and it was denied.  Charges were later preferred against the applicant for additional incidents of misconduct.  

2.  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, appears to be administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The approval authority approved his request and recommended that he be furnished an UOTHC discharge and that he be reduced to the lowest enlisted grade. 

3.  The applicant requested to withdraw his request for discharge and requested that he be allowed to stand trial to prove his innocence in this matter and remain until his ETS.  He was discharged on 10 November 1983.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks

5.  The applicant's record shows he completed 8 years, 9 months, and 8 days of net active service and 2 years and 16 days of prior active service for a total of 10 years, 9 months, and 24 days of total service which was less than 20 years necessary for the purpose of qualifying for a Regular Army retirement.  He is therefore not entitled to correction of his record to show that he completed 20 years of active Federal service and he is also not entitled to an active duty retirement.  The evidence supports the conclusion that the applicant was properly discharged on 10 November 1983, for the good of the service.  

6.  The applicant claims, in effect, that his military record should be corrected, that he should be provided back pay and allowances, awarded constructive service credit, and retroactive promotions.  There is no evidence, and the applicant has provided none, to show that an error or injustice occurred in his discharge process.  There also is no evidence to show that his military record should be corrected, with entitlement to any back pay and allowances, constructive service credit, or any retroactive promotions.

7.  The applicant contends that he should be awarded an AAP completion certificate for MOS 63B, Wheel Vehicle Mechanic.  It is noted that he stated in his appeal to his bar to reenlistment that he was enrolled in the AAP 63B and only needed 340 hours of work and 163 hours in related subjects to receive his certification of journey worker in the trade of Auto Mechanics.  

8.  It is noted that the applicant failed to provide evidence, and there is none, to support his statement regarding an AAP completion certificate for MOS 63B, Wheel Vehicle Mechanic.  It is presumed that the applicant was enrolled in an off duty course or in a correspondence course and was attempting to complete the AAP course prior to his ETS; however, if so, he was discharged and was unable to complete the AAP and he now wishes to be awarded a completion certificate.  This Board is unable and does not have the authority or the jurisdiction to award such a certificate from civilian counterparts.  

9.  The sworn statements the applicant submitted appear to have been reliable, competent, and of integrity.  They were considered but rejected at the ITO's level; however, it appears they were found sufficiently credible to serve as a foundation, in part, to support court-martial charges which led to the applicant voluntarily requesting discharge for the good of the service.  These statements were prepared approximately 25 years ago and do not support an upgrade of his discharge to honorable at this late date. 

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)                                         AR20080000486



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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