IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140008765 


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 to a general or an honorable discharge.

2.  The applicant states that Army officials violated his rights and he was not afforded due process in matters related to his separation processing.

   a.  He states that he was provided erroneous legal advice concerning the prospect of special court-martial proceedings including the right to counsel, notice of a hearing, the right to call witnesses, the right to cross-examine witnesses, the right to offer testimony on his own behalf, and the prospect of receiving a bad conduct or dishonorable discharge.

   b.  He states that he was born on 30 December 1961.  In December 1978, he was only 16 years of age when his mother signed the consent form for his initial entry into the U.S. Army Reserve (USAR).  At the time, he was a high school dropout with a 10th grade level of education.  As such, the U.S. Army recruiter may have improperly waived certain restrictions to allow him to enter the Army.  

   c.   On 2 February 1979, he was sworn into the USAR for a period of 6 years.  At the time, he was 17 years of age.  He successfully completed training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

   d.  Upon returning to his home station, the Army recruiter coerced him into being discharged from Reserve status and entering full-time active duty.  The reason for this was to circumvent the policy requirement of a high school equivalency diploma in order to enlist directly into the Regular Army (RA).

   e.  He states that he completed the Survival, Escape, Resistance, and Evasion course, followed by airborne ranger training.  He was also the post boxing champion at Fort Lewis, WA in 1980.

   f.  On 18 May 1980, Mount St. Helens erupted.  His unit was within 30 miles of the eruption and trapped for several hours before being evacuated.  This incident caused extreme stress, anxiety, and fear.  He subsequently voluntarily terminated his airborne status and transferred to a field artillery unit on Fort Lewis.  Shortly thereafter, he was charged with possession of marijuana cigarettes and he received nonjudicial punishment (NJP).

   g.  In 1981 he went on leave to New York.  His grandmother was very ill and he failed to return to his unit as scheduled.  In the summer of 1982, his grandmother passed away and, sometime thereafter, he surrendered to officers in the New York Police Department's 101st Precinct.

   h.  In October 1982, he was returned to military control and was given an administrative discharge under other than honorable conditions.

   i.  He states there were no special court-martial proceedings in his case and his conduct did not warrant an other than honorable characterization of service.  He outlines the characterizations of service available to separatees from the Army and notes that Soldiers who complete their service obligation may be given an honorable or a general discharge.  He also notes certain procedures under which a Soldier may be separated from the Army, including as a result of a court-martial and administrative separation proceedings.

   j.  He asserts that he could not have been discharged by special court-martial because the court-martial had no power to direct the issuance of a dishonorable discharge, and a bad conduct discharge could only have been imposed if a court reporter were present at the proceedings.

   k.  He refers to a court decision in which a former Soldier's discharge was upgraded because he was given erroneous legal advice from assigned counsel.

   l.  He concludes that the Army did not consider his age at the time of the incident, his good military record prior to the incident, and the situation for which he remained in an absent without leave (AWOL) status.

   m.  He adds that he only recently learned of the errors in his military record after he arrived at East Jersey State Prison in March 2012 and was introduced to the Incarcerated Veterans of America, Inc.

   n.  He states that his military records were obtained and a review revealed that he had been informed by a military official that after a two-year period his discharge would be "automatically" upgraded to a general discharge, so long as he had not gotten into any trouble as a civilian.  This fact, alone, supports an upgrade of his discharge in the interest of justice.

3.  The applicant provides –

* two letters from the National Personnel Records Center 
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DA Form 2-1 (Personnel Qualification Record)
* two DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty)

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.  A DD Form 1966 (Application for Enlistment – Armed Forces of the United States), prepared on 1 February 1979, shows the applicant was processed for enlistment in the USAR by a U.S. Army recruiter (Sergeant First Class (SFC) E____ M. L____). 

   a.  It shows the applicant's date of birth (DOB) as 30 December 1961 and that his DOB was verified by his birth certificate.  It also shows he completed the
10th grade of high school and did not graduate.

   b.  Section VI (Parental/Guardian Consent for Enlistment) shows the applicant's father (H____ S____) and his mother (F____ S____) confirmed the applicant's DOB and they consented to his enlistment in the USAR.  At the time that they signed the document, the applicant was 17 years of age.  Their signatures were witnessed by M____ C____.

   c.  The applicant certified the information on the form with his signature on
6 February 1979.

   d.  An Army official (SFC L___ G____) reviewed all the information on the form and found the applicant's qualifications fulfilled all legal and policy requirements for enlistment.

3.  A DD Form 4 shows the applicant enlisted in the USAR on 10 February 1979 for a period of 6 years.  At the time he was 17 years of age.

4.  A DD Form 214 shows the applicant entered active duty for training (ADT) on 22 February 1979, was honorably released from ADT on 19 May 1979, and transferred to a USAR unit.  He was awarded MOS 13B.  He had completed 
2 months and 28 days of net active duty service this period and he had 12 days of total prior inactive service.

5.  A DD Form 1966, prepared on 21 February 1980, shows the applicant was processed for enlistment in the RA by a U.S. Army recruiter (Sergeant V____ M. H____).

   a.  It shows the applicant's DOB as 30 December 1961 and that his DOB was verified by his DD Form 214.  It also shows that he had completed a High School General Equivalency Diploma (GED).
   
   b.  Section IX (Parental/ Guardian Consent for Enlistment) shows the applicant's father (H____ S____) and his mother (F____ S____) confirmed the applicant's DOB and they consented to his enlistment in the RA, on 29 October 1979.  At the time they signed the document, the applicant was 17 years of age. Their signatures were witnessed by V____ M. H____-P____.
   
   c.  The applicant certified the information on the form with his signature on
21 February 1980.

   d.  An Army official (SFC J___ M____) reviewed all the information on the form and found the applicant's qualifications fulfilled all legal and policy requirements for enlistment.

6.  The applicant was honorably discharged from the USAR on 24 February 1980.

7.  A DD Form 4 shows the applicant enlisted in the USAR, Delayed Entry Program, on 25 February 1980, for a period of 6 years.  He then further enlisted in the RA on 4 March 1980 for a period of 3 years.  At the time he was 18 years of age.

8.  His DA Form 2-1 shows in:

* item 17 (Civilian Education and Military Schools), he completed a State Department of Education, High School GED in 1980
* item 18 (Appointments and Reductions), he was promoted to private first class (PFC)/pay grade E-3 on 6 December 1980

9.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 
7 September 1982, shows an Army investigator advised the applicant of his rights and informed him that he wanted to question him about the offenses of AWOL for which he was accused.  The applicant indicated that he understood his rights and that he was willing to discuss the offenses under investigation without a lawyer being present.  The applicant, the Army investigator, and his commanding officer signed the form.

10.  A Personnel Control Facility Interview Sheet, dated 7 September 1982, shows the applicant was asked, "Why did you go AWOL?"  He responded, "I went AWOL from Fort Lewis, WA.  I went AWOL because of family and personal problems."  It also shows the applicant and the interviewer both placed their signatures on the form.

11.  On 8 September 1982, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 3 June 1981 to 17 June 1982 and from 17 June 1982 to 
7 September 1982.

12.  On 8 September 1982, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of a lesser included offenses therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might:

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and reduced to the pay grade of E-1.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit a statement.

   e.  The applicant and his counsel placed their signatures on the document.

   f.  A review of the applicant's request for discharge and his counsel's portion of the document fails to show any evidence he was informed that after a two-year period his discharge would be "automatically" upgraded to a general discharge.

13.  A DA Form 31 (Request and Authorization for Leave) shows the applicant requested and was granted excess leave from 8 September 1982 to an unspecified date for the convenience of the government because he desired to be discharged in absentia.  The commander approved his request.

14.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

15.  The General Court-Martial Convening Authority (GCMCA), the separation authority in the applicant's case, approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

16.  The applicant's DD Form 214 shows he was discharged on 1 October 1982 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, with an under other than honorable conditions characterization of service.

   a.  It shows he was authorized or awarded the Army Service Ribbon, Parachutist Badge, Expert Marksmanship Qualification Badge with (M-16) Rifle Bar, and Ranger Tab.

   b.  It also show he completed 1 year, 4 months, and 8 days of net active service during this period and that he had 447 days of time lost.

17.  A review of the applicant's military personnel record failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 under other than honorable conditions is normally considered appropriate.

   b.  Chapter 3 provides that a member will be given a dishonorable or a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered executed.

	c.  This chapter also provides in:

    	(1)  paragraph 3-7a 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; and

    	(2)	 paragraph 3-7b 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 discharge should be upgraded because:

* he was 16 years of age when his parents consented to his entry into the USAR
* the Army recruiter may have improperly waived certain restrictions to allow him to enter the RA
* Army officials violated his rights and he was not afforded due process in matters related to his separation processing
* he was provided erroneous legal advice concerning court-martial proceedings, including the prospect of receiving a bad conduct or dishonorable discharge
* the Army did not consider his age at the time of the incident, his good military record prior to the incident, and the situation for which he remained in an AWOL status
* his conduct did not warrant an other than honorable characterization of service
* he was informed that his discharge would be "automatically" upgraded to a general discharge after a two-year period

2.  Records show the applicant's parents consented to his enlistment in the USAR on 1 February 1979.  At the time, he was 17 years of age (emphasis added) and he had not completed high school.  There is no evidence of record that the Army recruiter improperly waived any of the entrance criteria.  In fact, another Army official who reviewed the enlistment application found the applicant fulfilled all legal and policy requirements for enlistment.  Accordingly, the applicant enlisted in the USAR on 10 February 1979.

3.  The applicant successfully completed a period of ADT from 22 February 1979 through 19 May 1979 and he was honorably discharged from the USAR on
24 February 1980.  At the time he was 18 years of age (emphasis added).

4.  Records show, on 29 October 1979, the applicant's parents consented to his enlistment in the USAR (DEP) with further enlistment in the RA.  At the time they signed the document, he was 17 years of age (emphasis added).  Records also show that, as of 21 February 1980, the applicant had completed a GED.  There is no evidence of record that the Army recruiter improperly waived any of the entrance criteria.  In fact, another Army official who reviewed the enlistment application found the applicant fulfilled all legal and policy requirements for enlistment.  Accordingly, the applicant enlisted in the RA on 4 March 1980.  At the time he was 18 years of age (emphasis added).  As such, parental consent was not required at the time he actually enlisted in the RA.
5.  Thus, the evidence of record does not support his contention that Army recruiting officials:

* improperly waived certain restrictions to allow him to enlist in either the USAR or the RA
* violated any legal and policy requirements

6.  Considering the applicant successfully completed ADT, was awarded MOS 13B, and honorably discharged from the USAR to enlist in the RA, his contention that he was immature at the time he went AWOL is not supported by the evidence of record.  Additionally, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

7.  The evidence of record shows, on 7 September 1982, an Army investigator advised the applicant of his rights and informed him that he wanted to question him about the offenses of AWOL for which he was accused.  The applicant acknowledged that he understood his rights and that he was willing to discuss the offenses under investigation without a lawyer being present.

8.  The evidence of record also shows, on 8 September 1982, the applicant consulted with legal counsel.  He was informed of the charges against him for violating Article 86 of the UCMJ and that he was pending trial by court-martial.

   a.  The applicant was charged with offenses which authorized the imposition of a bad conduct discharge (by an approved sentence of a special court-martial) or a dishonorable discharge (by an approved sentence of a general court-martial).

   b.  The applicant was advised of the rights available to him (emphasis added) and of the option to request discharge for the good of the service in lieu of trial by court-martial.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 

   c.  By submitting his request for discharge, he acknowledged that he was guilty of the charges against him or of a lesser included offenses therein contained, which also authorized the imposition of a bad conduct discharge or a dishonorable discharge.

   d.  The evidence of record shows the GCMCA approved the applicant's request for discharge in lieu of trial by court-martial.  Thus, the evidence of record shows the applicant was subject to the prospect of either a bad conduct discharge or a dishonorable discharge, except for the fact that the GCMCA accepted his request for discharge for the good of the service in lieu of trial by court-martial. 

9.  Thus, the evidence of record does not support his contentions that:

* Army officials violated his rights and he was not afforded due process in matters related to his separation processing
* he was provided erroneous legal advice concerning court-martial proceedings, including the prospect of receiving a bad conduct or a dishonorable discharge

10.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the reason for discharge and characterization of service were both proper and equitable.

   a.  Records show the highest rank the applicant attained was PFC (E-3) and that he was authorized or awarded the Army Service Ribbon, Parachutist Badge, Expert Marksmanship Qualification Badge with (M-16) Rifle Bar, and Ranger Tab.

   b.  Records also shows that during the period of service under review, the applicant was charged with offenses punishable by a bad conduct discharge or a dishonorable discharge (emphasis added), he had 447 days of time lost 
(i.e., more than 1 year and 2 months), he was reduced to private (E-1) prior to his discharge, and he failed to complete his 3-year service obligation.

   c.  Thus, a review of the applicant's overall record of service during the period under review clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

11.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.

12.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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)                                         AR20140008765



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ABCMR Record of Proceedings (cont)                                         AR20140008765



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