IN THE CASE OF:  	  

		BOARD DATE:  8 September 2015	  

		DOCKET NUMBER:  AR20150001579 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD) and, in effect, that his court-martial charges be voided. 

2.  The applicant states that –

* there is no investigation report, incident report, or a formal infraction of the alleged offenses against him that shows the cause for his extra duty 
* it is a mystery to him what the reason used by his superiors to give him extra duty on the dates cited within his period of confinement 
* it is odd that he was court-martialed and put in the stockade for not doing extra duty
* he does not recall any incident that resulted in extra duty during his service prior to his confinement
* the records he received from the National Personnel Records Center (NPRC) do not include any documentation of incident reports, sanctions, infractions, records of investigation reports in regards to the charges (on the charge sheet)
* there is no evidence as to why he was ordered to stay in the orderly room 
* if he did refuse a direct order, he knows of no Soldier who was put in the stockade and kicked out of the Army for a minor offense of leaving an area
* he was not afforded any disciplinary counseling or form of redemption
* he feels that his period of confinement and discharge were a miscarriage of justice

3.  The applicant provides a 6-page personal statement, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a DD Form 458 (Charge Sheet).

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 26 March 1980, completed training, and was awarded the military occupational specialty 11B (Infantryman).

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on:

* 28 September 1980 for absenting himself from his place of duty; his punishment consisted of forfeiture of pay of $104 (suspended for 60 days), restriction to the brigade complex for 14 days, and 14 days of extra duty
* 3 November 1980 for possession of marijuana; his punishment consisted of reduction to pay grade E-1 (suspended for 90 days), forfeiture of $224 for 2 months (1 month forfeiture suspended for 90 days), restriction to the brigade complex for 45 days, and 45 days of extra duty

4.  The record contains copies of the duty logs showing the applicant's failure to report for extra duty on 4 occasions.

5.  In his statement of 10 December 1980, Second Lieutenant M____ states that upon the applicant's return from being absent without leave (AWOL) on 9 December 1980, he restricted the applicant and another Soldier to the orderly room except for chow and they were to be escorted by a noncommissioned office (NCO).  On the night of 9 December 1980, just prior to taking both Soldiers to the stockade, they ran out of the orderly room; thereby breaking restriction and disobeying his direct order.

6.  On 12 December 1980, court-martial charges were preferred.  The preferred charges were four specifications for failing to go at the time prescribed to his appointed place of duty (extra duty) and one 7-day of AWOL and willfully disobeying a direct order from a commissioned officer.

7.  On 30 December 1980, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if he were found guilty of the charge, or lesser included charges, that he could be discharged with a punitive discharge and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  

8.  On 31 December 1980, the general court-martial convening authority approved the applicants request for discharge in lieu of trial by court-martial.  He directed the applicant be reduced to the lowest enlisted grade and discharged with a UOTHC Discharge Certificate.

9.  The applicant was discharged on 20 January 1981 with a UOTHC.  His 
DD Form 214 shows he had 9 months and 16 days of net active service this period with lost time shown as "801201-801208."  

10.  There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

11.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. 

	b.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  A UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  Chapter 10 provides 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 UOTHC discharge is normally considered appropriate.  

13.  The Table of Maximum Punishment for the Manuel of Courts-Martial, shows the maximum punishment for willfully disobeying a direct order from a commissioned officer is a dishonorable discharge, 5 years of confinement, and total forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he does not remember the details surrounding his misconduct and discharge and is relying on documents provided to him by the NPRC for his request.  He does not provide a list of what documents he may have received from NPRC and provides only a copy of the court-martial charge sheet and his DD Form 214 in support of his allegations.  His available official record contains significantly more documentation related to his misconduct and discharge than the documents he has provided.

2.  The applicant received NJP on two occasions.  On both occasions he was restricted to the brigade complex, not placed in confinement.  There is no evidence that he actually served any time in the stockade.

3.  The applicant's second NJP (for possession of illegal drugs) imposed a period 45 days of restriction to the brigade complex.  In addition to the period of restriction, this punishment also required the applicant to perform 45 days of extra duty.

4.  The NJP's were imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offenses, and there is no evidence of any substantive violation of any of the applicant's rights.

5.  The evidence shows that during the second period of extra duty, the applicant failed to report to perform his extra duty on four occasions leading to four of the specifications listed on the court-martial charge sheet.

6.  While on restriction, the applicant went AWOL for 7 days.  Upon return he was given a direct order that further restricted him to the orderly room pending transportation to the stockade.  He deliberately violated this order and left the orderly room.

7.  Although court-martial charges were preferred, the applicant was not in fact court-martialed.  Prior to the convening of the court-martial he voluntarily requested to be administratively discharged in lieu of being court-martialed.

8.  The fact that the applicant does not clearly remember the actions that led to his discharge or allegedly does not have copies of all documents related to the NJP, charges, and punishments, or his discharge processing is not a valid reason for granting an upgrade of his characterization of service.

9.  The applicant was legally ordered to remain in the orderly room upon his return from AWOL pending transfer to the stockade.  The applicant may feel that his misconduct was minor, but willful disobedience of a direct order by a commissioned officer is a serious offense as the authorized punishment clearly illustrates.  

10.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offence for which he requested discharge and is appropriate for the applicant's overall record of military service.

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)                                         AR20150001579



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ABCMR Record of Proceedings (cont)                                         AR20150001579



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