IN THE CASE OF:  

		BOARD DATE:  13 October 2015

		DOCKET NUMBER:  AR20150003911


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 correction of his military records by upgrading his under other than honorable conditions (UOTHC) discharge to a fully honorable characterization of service.
   
2.  The applicant states he wants an upgrade of his discharge because he was discharged after being incarcerated on false charges while on leave and involuntarily absent without leave (AWOL).  He contends that he served honorably during his time in the U.S. Army.  He was due to be discharged only 11 days after returning from leave.

3.  The applicant provides no additional documentation.  He defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s characterization of service be upgraded from UOTHC to fully honorable.

2.  Counsel states in his 6-page brief the following material contentions, as summarized:

	a.  The statute of limitations should be waived because the applicant did not know of his service characterization when discharged.  His efforts to apply for a correction of his records were repeatedly frustrated by the unavailability of his records.

	b.  The applicant’s characterization of service was in error and unjust because his AWOL status was the result of false charges that were withdrawn.  He was AWOL as a result of being incarcerated based on false allegations.  He was prevented from returning to duty after his authorized leave due to no fault of his own and had no chance of making up the lost time.

   c.  His service was honorable except for the period during which he was considered to be AWOL.  He relied upon assurances he would receive a general characterization of service.

	d.  The applicant’s characterization of service was in error because the process did not comply with Army procedures.  Counsel argues, in effect, that the applicant was not made aware that he had to request a UOTHC in lieu of court-martial, that the commander did not ensure he understood the charges against him and the effects of the characterization on his future, and that he was not afforded counsel.

3.  Counsel provides copies of:

* Brief, dated 17 February 2015 (6 pages)
* Statement from applicant, undated (3 pages, handwritten)
* Letter from applicant to Northwest Justice Project (2 pages, handwritten)
* Letter from National Personnel Records Center, dated 3 June 2014
* National Archives Form 13038 (Certification of Military Service)           dated 3 June 2014
* DD Form 214 effective 11 August 1977
* Manual for Courts-Martial, paragraph 165, Article 86 (AWOL) (2 pages)
* Minutes (Case Number CC77-132, Nol Prossed) 25 October 1977
* Title 10, U.S. Code, section 972 “Members: Effect of time lost”,       undated (2 pages)
* Newspaper article, Star in Korea (1 page)
* Army Regulation 635-200, Chapter 10, Discharge for the Good of the Service, dated 14 December 1973 (pages 10-1 through 10-5)
* Casey v. United States, 8th Circuit Court, 234, dated 1985 (9 pages)

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 military personnel service record was obtained from the National Personnel Records Center and contained the source documents used in the consideration of evidence.  

4.  On 28 February 1974 the applicant enlisted in the Regular Army.  He was enrolled in basic combat training at Fort Knox, Kentucky on 7 March 1974.

5.  On 27 April 1974, the applicant was AWOL.  He accepted nonjudicial punishment (NJP) for being AWOL from 27 April to 1 May 1974.

6.  On or about 21 June 1974, the applicant completed advanced individual training as an indirect fire infantryman and was assigned for duty at Fort Lewis, Washington.

7.  On 16 October 1974 the applicant accepted NJP for failing to obey a lawful order to clean mortar equipment.

8.  On 6 December 1974 the applicant was AWOL.  He was returned to military control on 8 January 1975 and placed in pre-trial confinement.

9.  On 14 March 1975, the applicant was convicted by special court-martial for being AWOL during the period discussed in the previous paragraph.

10.  On 26 June 1975, the applicant accepted NJP for failure to go at the time prescribed to his appointed place of duty.

11.  On 20 August 1975, the applicant accepted NJP for failure to go at the time prescribed to his appointed place of duty.

12.  On or about 3 September 1975, the applicant departed the United States for duty in the Republic of Korea (ROK), where he was assigned to the 2nd Battalion, 9th Infantry Regiment, 2nd Infantry Division.  He served in the ROK from 7 October 1975 to 8 October 1976, and then returned to Fort Lewis, Washington.

13.  The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows in the Remarks block that he was arrested on 19 April 1977 by civilian authorities while he was in an AWOL status.  He was charged with grand larceny. He was subsequently released on 27 June 1977 on a $500.00 bond, pending further disposition.

14.  On 6 July 1977, charges were preferred against the applicant for being AWOL from on or about 9 January to 4 February 1977, and from on or about 22 March to 27 June 1977.

15.  On or about 8 July 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  He elected to make a statement in his own behalf.  His statement, in summary, said:

	a.  He wanted an administrative discharge because he felt it would benefit both him and the Army.  He had not made any rank while in the Army and had not adapted to the military way of life.

	b.  He had lost all communication with his son.  He was not then married, but had a lovely lady who was pregnant with his child.  He was afraid that by staying in the military he would lose his future family.

	c.  He asserted that he had been offered college scholarships based on his being an athlete and had a job waiting for him.  These were important reasons for him to leave the military.

	d.  He stated that even with his 3 years of military service, problems and NJPs, he still hoped to receive a general discharge so he could lead a more suitable and successful civilian life.

16.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  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 law.

17.  On 14 July 1977, the applicant’s company commander recommended an UOTHC characterization of service.  The commander stated the applicant was aware of the nature of such a discharge and still wanted to be eliminated from the service.  The applicant told the commander that his AWOL was the result of his not being able to adjust to military life because of problems concerning his son and his plans to marry soon. His failure to be promoted was due to his NJPs and court-martial in 1975.

18.  On 29 July 1977, the separation authority approved the applicant’s request for discharge and directed the issuance of a DD Form 794A (Discharge Under Other Than Honorable Conditions Certificate).  On 11 August 1977, the applicant was discharged accordingly.  He completed 2 years, 11 months and 21 days of creditable active military service and accrued 173 days of lost time.

19.  On 16 July 1979, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

20.  As evidence to support the applicant’s application, counsel provided:

	a.  a document stating that on 25 October 1977, a civilian court judge based on a motion from the assistant district attorney ordered the court case against the applicant closed.

	b.  an undated newspaper article from Camp Casey, South Korea that states the applicant was an accomplished basketball player and starter on the 2nd Battalion, 9th Infantry Regiment men’s basketball team.  He was named the most valuable player during a tournament and had been approached by numerous colleges who were interested in his basketball skills.

	c.  a court case identified as Casey v. the United States (Number 528-80C, dated 13 May 1985) wherein the court granted the plaintiff’s motion.  The plaintiff (Casey) was a 17 year Army career Soldier who was enrolled in the Army alcohol abuse program and was declared an alcohol rehabilitation failure.  By Department of Defense regulations, the plaintiff based on his 17 years of active federal service was entitled to an administrative board hearing before a board of officers prior to the discharge authority rendering an administrative separation decision.  Soldiers with more than 8 years of active federal service who are being considered for administrative separation by regulation are entitled to an administrative hearing.  As he was denied a hearing, his rights were violated.  

21.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets the policies, standards and procedures to insure the readiness of the force and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge (bad conduct discharge or dishonorable 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 (undesirable discharge certificate) was normally considered appropriate.  Only commanders exercising general courts-martial jurisdiction are authorized to approve requests for discharge for the good of the service and to order the discharge. 

	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.

	c.  Paragraph 3-9 provides that a separation will be described as an entry level (uncharacterized character of separation) when separation action is initiated while a member is in an entry level status (first 180 days of active duty for Regular Army Soldiers), except in specified circumstances. 

22.  Rule 48 of the US Federal Rules of Criminal Procedure (FRCRP) mandates that prosecutors seek leave of the court before dismissing a case via filing a nolle prosequi.

   a.  Nolle prosequi as a declaration can be made by a prosecutor in a criminal case either before or during trial, resulting in the prosecutor declining to further pursue the case against the defendant.  Courts seldom challenge applications for nolle prosequi. In the U.S., judges will usually sign a dismissal order prepared by the prosecution or make a docket entry indicating the disposition of the case to be "nolle prosse" after a declaration or motion by the prosecution. In criminal cases in the U.S. it has been held improper for a court to enter an order of nolle prosequi on its own without a motion by the prosecutor. 

   b.  The prosecutor in a criminal case normally motions for a "nolle prosse” disposition of the case because the charges cannot be proved due to evidence too weak to carry the burden of proof; because the evidence is fatally flawed in light of the claims brought; or may be made if the prosecutor becomes doubtful the accused is guilty or the defendant's innocence is proved; or if the defendant has died.  It has also been used when a Federal criminal charge is brought up against a defendant and the prosecutor on a State charge for the same offense no longer wishes to pursue the case.  Usually this happens when the State prosecutor is content with the sentence on the Federal charge and has no need to go any further with the original case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant through counsel contends that his military records should be corrected by upgrading his UOTHC discharge to a fully honorable characterization of service because he was discharged after being incarcerated on false charges while on leave.  As he was involuntarily incarcerated by civilian authorities, he was involuntarily AWOL.

2.  The available evidence of record maintained in his personnel record at the National Personnel Record Center shows that the applicant accepted four NJPs and was convicted by a special court-martial for being AWOL and for failing to go to his appointed place of duty.  The applicant’s misconduct began while he was still in an entry level training status in 1974 and continued throughout his nearly 3-year period of service.  He accrued 173 days of lost time.  The basis for his administrative discharge was his admitted inability to adjust to military life, family problems, and another documented AWOL that included a period of civil confinement.

3.  The applicant's assertion that his characterization of service was in error and unjust because his AWOL status was the result of false charges that were withdrawn is not supported by the available evidence of record.  He was in an AWOL status at the time of his civilian arrest on 19 April 1977.  He was charged with grand larceny.  He was subsequently released on 27 June 1977 on a $500.00 bond pending further disposition and returned to military control.  He was discharged from the Army on 11 August 1977.  On 25 October 1977, a civilian court judge ordered the court case against the applicant closed.  The civilian court closed his case more than 2 months after he was discharged from the U.S. Army.

4.  The available evidence fails to clearly state the exact reason why the applicant was not prosecuted by the civilian court.  There is no evidence to support his contention that he was falsely charged, or did not commit the crime that he was allegedly charged with.  The evidence only shows that the prosecutor did not believe he could successfully prosecute the case.

5.  The applicant’s argument that he was not at fault for being AWOL is found to be without merit.  He was already AWOL when arrested by civilian authorities.  Based on his personal statement made at the time of his request for discharge in lieu of trail by court-martial for AWOL, he was having family problems and desired to be with his son and pregnant future wife.  He also stated he had a history of discipline problems based on his inability to adjust to military life.

6.  The applicant’s contention that he was assured of receiving a general, under honorable conditions characterization of service is also without merit.  His discharge packet clearly states he understood the consequences of a UOTHC and still desired to be administratively separated from the service based on the AWOL charge. 

7.  Counsel’s argument that the applicant’s characterization of service was in error because the process did not comply with Army procedures is without merit. The applicant was made aware by his commander and counsel that he had to request a UOTHC in lieu of court-martial for the AWOL offense.  The discharge packet shows the commander ensured the applicant understood the charges against him and the effects of the characterization on his future.  The applicant had the option based on the charged offenses to request a trail by court-martial which could have imposed a punitive discharge or request an administrative separation.  Counsel submitted Casey v. the United States for the Board’s consideration.  This case involved a 17 year active federal service Soldier who was denied the right to an administrative hearing prior to his discharge for alcohol rehabilitative failure.  The applicant did not have more than 8 years of active federal service and he was charged with offenses punishable in a court-martial.  He received counsel and opted to request an administrative discharge rather than be subjected to a court-martial and the potential of a punitive discharge.  Thus, there is nothing in the available evidence to support a finding of an injustice or error on the part of the Army. 

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)                                         AR20150001474



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ABCMR Record of Proceedings (cont)                                         AR20150003911



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