IN THE CASE OF:  	  

		BOARD DATE:  4 November 2014	  

		DOCKET NUMBER:  AR20140004969 


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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  He states:

* a UOTHC discharge seems too severe at the time it was issued based on his military service records
* his first years in the military were good and his record of promotions shows he was generally a good service member
* his average conduct and efficiency ratings/marks were pretty good
* he did not have any problems until he was assigned to Fort Polk
* his record of nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) indicate minor offenses 

3.  He provides:

* Self-authored statement
* Certificate of Achievement
* Three character references 

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 was born on 1 September 1955 and he enlisted in the Regular Army (RA) on 29 November 1976 at the age of 21.  

3.  He provided a Certificate of Achievement, dated 23 April 1979, which shows he was commended for his meritorious achievement during REFORGER 79 from 23 January to 6 February 1979 while serving as a Maintenance Control Specialist with the 182nd Maintenance Company Rear Support Team.  

4.  He continued to serve on active duty through two reenlistments, on 22 June 1979 and 25 March 1982.  The highest rank/pay grade he attained while on active duty was specialist four (SP4)/E-4.  He was assigned to Company A, 3rd Battalion, 77th Armor at Fort Polk, LA on 27 July 1982.

5.  On 28 October 1982, he accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 9 to 11 October 1982.  

6.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Oversea Service) he served in Germany from 6 June 1977 to 23 November 1979 and from 25 June 1981 to 23 June 1982.

   b.  item 18 (Appointments and Reductions) he was promoted to SP4/E-4 on 28 February 1978.  He was reduced from SP4 to private/E-2 (PV2) on 
28 October 1982 and from PV2 to PV1 on 7 January 1983.

   c.  item 21 (Time Lost (Section 972, Title 10, U.S. Code)) he was AWOL from 11 to 13 August 1980, 9 to 11 October 1982, and from 31 October to 12 November 1982.  He was imprisoned by civil authorities from 13 to 
16 November 1982.  
   
   d.  item 27 (Remarks) he was arrested on 13 November 1982 by civilian authorities in Leesville, LA while in a duty status.  He was charged with writing worthless checks, but he made restitution and the charges were dropped.  
   
7.  His discharge packet is not available for review.  His DD Form 214 shows 
he was discharged on 14 January 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of court-martial with issuance of a UOTHC discharge.  He completed 3 years and 6 months of active military service during the period under review with 23 days of lost time and 6 years and 24 days total active military service.  

8.  He provided a self-authored statement in which he attested:

	a.  he was a member of the [Junior] Reserve Officers’ Training Corps (JROTC) in high school and joined the Army with much enthusiasm.  He applied and tried to acclimate himself [into the military] as best as he knew how.

	b.  the punishment he received indicates that he wasn't a bad Soldier as he received two Article 15s.

	c.  even though his records show he has AWOL, they were truly not intentional, except the last period.  He states he was young and joining the Army was his first time leaving his home and the state of Florida.

	d.  during the periods 11 to 13 August 1980, 9 to 11 November 1982, and 31 October to 12 November 1982 he returned to his unit late after visiting his family, his mother was ill, and an M6A1 tank was missing from inventory while he was in charge of the Motor Pool.

	e.  after these events, he experienced harassment and taunting on his job.  He was scared so he left the Post and stayed with a friend off-post.  Two weeks later, the tank was found in the Motor Pool paint shop.  The paperwork on the tank was destroyed and the serial numbers on the tank were rubbed and/or sand blasted off.  He understands that such an incident may not be anywhere in the records for verification as he was unable to ascertain any documents to reference to this incident.

	f.  there were numerous instances of prejudice and biased activities happening at Fort Polk, LA.  

   g.  this is what led to his discharge.  He was always on time and took care of his paperwork.  Everything was always in order.  He followed directions and orders when given.  
   
h.  he believes that clemency is warranted because it was an injustice for him 
to continue to suffer the adverse consequences of a bad discharge.  He believes that under current standards he would not have received the discharge that he received and has been a good citizen since discharge.  He apologizes for the wrong that he did and if he had to do it all over again, the outcome would not be the same.  

9.  He provided a character reference from his friend who attested:

   a.  he has known the applicant for 42 years and was in JROTC with him in high school in 1971.  The applicant was eager to learn and soon began to show leadership qualities.
   
   b.  the applicant joined the Army after graduation from high school.  After the applicant's enlistment, he returned to the school and helped him because he was the only instructor.
   
   c.  the applicant and his wife are Christians and show their Christian love to others, especially to the elderly.  

10.  He provided a second character reference from his wife who attested:

	a.  she has been married to the applicant for about 20 years.  During their marriage, they have worked together in many fields as volunteers for helping other people.  

   b.  they have volunteered with the Crossing Guard for Okaloosa Sheriff Department, Okaloosa School Board, Baker Fire Department, Almanrate Fire Department, Red Cross of Okaloosa County, Guardian Aid, Okaloosa Medical Center, and Salvation Army.  They were also Mr. and Mrs. Polka Dot Clowns for a Drug Program to help give knowledge to kids to protect them from this danger.

	c.  the applicant has been a helpmate with her mother who has dementia and Alzheimer's and has had mini-strokes.  He also serves on their church's Trustee Board, Deacon Board, Usher Board, and does maintenance.  They share responsibility for the upkeep of the church with decorations and flowers and they assist the elderly in the community.  

	d.  the applicant now has health problems.  He told her the story about his past in the military why he made a mistake as an afraid, young, Black man in the military.  

11.  He provided a third character reference from a friend who attested she has known the applicant since 1955.  She described the applicant as an excellent citizen in his community.

12.  On 17 April 1998, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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, a discharge UOTHC is normally considered appropriate.

	a.  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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge was too severe based on his military service records.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct that appears to have led to his discharge.

2.  His contention that his years in the military were good and his record of promotions shows he was generally a good service member is acknowledged.  His service record shows he enlisted in the RA on 29 November 1976 and reenlisted on 22 June 1979 and 25 March 1982.  His service record shows the highest rank/pay grade he attained while on active duty was SP4/E-4. 

3.  He contends his average conduct and efficiency ratings/marks were pretty good.  That is acknowledged, otherwise he would not have been allowed to reenlist.

4.  His contention that he did not have any problems until he was assigned to Fort Polk does not justify the misconduct for which he was discharged.

5.  His service record shows he received one Article 15 during the period under review for being AWOL from 9 to 11 October 1982 and he accrued 23 days of time lost.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.

6.  He contends he was young and joining the Army was his first time leaving his home and his first time leaving the state of Florida.  He admitted that his last period of AWOL was intentional.  Records show the applicant was 27 years of age at the time of his offense.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  

7.  His service record is void of evidence and he has not provided evidence which demonstrates he was harassed or the victim of prejudice/bias while at Fort Polk.  

8.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

9.  The applicant's statements from his wife and friends are acknowledged; however, these statements alone are not sufficiently mitigating to warrant an upgrade in this case.

10.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.
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
      
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.



ABCMR Record of Proceedings (cont)                                         AR20140004969





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ABCMR Record of Proceedings (cont)                                         AR20140004969



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