BOARD DATE:  5 February 2015

		DOCKET NUMBER:  AR20140011442


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:

	a.  an upgrade of his under other than honorable conditions discharge;  

	b.  correction of his records to show he completed the following courses:

* Jungle Warfare Training Course at Fort Sherman, Panama
* Light Leadership Development Course at Fort Benning, GA
* Air Assault Course at Fort Ord, CA
* Joint Operation Training at Camp Casey, Korea
* Basic Noncommissioned Officer Course (BNCOC) at Fort Ord, CA

	c.	correction of his records to show he was awarded military occupational specialties (MOS) 11B (Infantryman) and 11C (Indirect Fire Infantryman); and

	d.  correction of his records to show he served as the Nuclear, Biological, and Chemical (NBC) NCO in Company B, 1st Battalion, 32nd Infantry Regiment, in the rank/grade of corporal/E-4.

2.  The applicant states he entered the U.S. Army as an 18-year old boy.  He worked hard and finished training in MOS 16B (Hercules Missile Crewmember) and MOS 24U (Nike Hercules Custodial Mechanic), at the top of his class and without incident.  He was assigned to Delta Team, 52nd United States Army Artillery Detachment, where he received his two Article 15s in which he received legal counsel.  A leadership change and poor leadership negatively affected him.  During this time he was retrained into MOS 11B and 11C.  

3.  The applicant provides no additional evidence 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 enlisted in the Regular Army on 20 January 1981.  He completed training and was awarded MOS 24U (Hercules Electronics Mechanic). The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  On or about 15 September 1983, he accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for unlawfully striking a fellow Soldier on the head with a mail bag.  This is the only evidence of NJP in his records.

4.  On or about 2 April 1986, his unit reported him in an AWOL status.  He remained AWOL until he returned to his unit on or about 3 April 1986.  

5.  On or about 7 April 1986, his unit reported him in an AWOL status.  He remained AWOL until he was apprehended by military authorities and returned to military control at Fort Ord, California on or about 9 April 1986.   

6.  On 16 May 1986, court-martial charges were preferred against him for two specifications of violations of Article 86 and one specification of a violation of Article 92 - AWOL from 2 April to 3 April 1986 and AWOL from 7 April to 9 April 1986 and for failing to obey a lawful order on or about 16 May 1986. 


7.  On 16 May 1986, he consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he acknowledged:

   a.  He understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  

   b.  He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  
   
   c.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 
   
   d.  He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements.

8.  On 10 February 1987, the Commander, 7th Infantry Division and Fort Ord, Fort Ord, California, approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an Under Other Than Honorable Conditions Discharge. 

9.  On 7 April 1987, the applicant was discharged accordingly.  The DD Form 214 he was issued shows:

* he was credited with the completion of 6 years, 2 months, and 15 days of net active service during this period of enlistment
* he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial
* he was issued an under other than honorable conditions discharge
* he had lost time of 2 April 1986 and from 7 April 1986 through 8 April 1986

10.  The applicant's record is void of any evidence that shows he completed any of the following courses: 

* Jungle Warfare Training Course at Fort Sherman, Panama
* Light Leadership Development Course at Fort Benning, GA
* Air Assault Course at Fort Ord, CA
* Joint Operation Training at Camp Casey, Korea
* BNCOC at Fort Ord, CA

11.  The applicant's record is void of any evidence or documentation that shows he was either formally trained in or awarded MOS 11B or 11C.  Additionally, it is void of evidence or documentation that shows he served as the NBC NCO in Company B, 1st Battalion, 32nd Infantry Regiment.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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, 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 under other than honorable conditions is normally considered appropriate.

   a. Paragraph 3-7a states 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 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.  
   
14.  Army Regulation 635-5 (Separation Documents) at the time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It further provides that item 14 will document formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills are not listed.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade and other administrative corrections to his records was carefully considered. 

2.  His record shows he was charged due to the commission of an offense 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.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his extended period of time lost, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  His record does not contain documentation and he has not provided documentation that shows he completed any of the military education cited in his request, which he seeks to have added to his DD Form 214.  Further, his record does not contain documentation and he has not provided documentation that shows he received formal training, or was awarded qualification, in either MOS 11B or 11C.  Therefore, there is an insufficient basis for granting this portion of the requested relief.

6.  Lastly, he requests correction of his records to show he served as the NBC NCO of Company B, 1st Battalion, 32nd Infantry Regiment.  There is no evidence in the available record that supports his request, and there is no provision in the governing Army regulation that allows the annotation of service in a particular duty position or company-level unit to a separating Soldier's DD Form 214.  Therefore, there is no basis for granting this portion of the requested relief.



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)                                         AR20100014558



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011442



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1