IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150003570 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 an honorable discharge. 2. The applicant states: * he was a young kid at the time, but he is older and wiser now; if he had to do it all over again he would do it differently * he would fight for the country that he loves * he is not looking for veterans benefits, he just wants to be able to hold his head high * it has been almost 40 years since his discharge from the Army; he has come to know what it means to serve this country * he sees other veterans and/or disabled Soldiers and feels thankful for their service and sacrifice; he wants to clear a troubled mind * he has helped others from little league to scout leader; he wants his honor back so he may go to Veterans Day parades and not feel ashamed * over the years, he has tried to educate others that everything they do has consequences 3. The applicant provides: * His enlistment contract * DA Form 20 (Enlisted Qualification Record) * Letter from the National Personnel Records Center * DD Form 214 (Report of Separation 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. The applicant enlisted in the Regular Army on 27 November 1973. He completed basic combat training at Fort Dix, NJ. 3. Following his arrival at Fort Hood, TX, on 16 March 1974, he was assigned to the 21st Replacement Detachment, and attached to Company E, 16th Signal Battalion, Fort Hood, on 21 March 1974. Following on the job training, he was assigned to this unit on 22 May 1974. 4. On 4 June 1974 he departed his unit in an absent without leave (AWOL) status and he returned to military control on 3 July 1974. 5. He departed his unit in an AWOL status again on 3 July 1974 and he was immediately dropped from Army rolls as a deserter. He was apprehended by Federal authorities in Oklahoma City, OK and returned to military control on 19 September 1974. 6. On 25 September 1974 court-martial charges were preferred against him for two specifications of being AWOL from 4 June to 3 July 1974 and from 3 July to 19 September 1974. 7. On 30 September 1974 he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge * he was making this request of his own free will and he had not been subjected to any coercion * he had been advised of the implications that were attached to his request * he understood that if the 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 * he elected to submit a personal statement 8. In his statement, the applicant indicated, in effect: * he was out of work and his father pressured him to join the Army; he had no Article 15s or any courts-martial * he wanted out of the Army because he believed it interfered in his personal life * he and his girl were going to get married but his leave was too short so he took her to Texas with him * her father came looking for her and some noncommissioned officers tried to make him wreck his car to catch them * they interfered in his private life and caused problems * he planned to go back to his old job making good money * he wanted to lead his own life and be his own boss; he wanted to make it on his own with no interference from the Army 9. On 3 October 1974, his immediate commander recommended approval of the applicant's discharge request with the issuance of an Undesirable Discharge Certificate. He opined that the applicant's problems made it difficult for him to cope with military life. 10. On 4 October 1974, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and be issued an Undesirable Discharge Certificate. On 9 October 1974, the applicant was accordingly discharged. 11. The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an under other than honorable conditions character of service and he was issued an Undesirable Discharge Certificate. This form further confirms he completed a total of 6 months and 7 days of creditable active service during this period and he had 127 days of time lost. 12. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 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's records show he was charged with 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. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 2. The personal problems he describes are noted. However, he had legitimate avenues to address his problems had he chosen to do so, to include working with his chain of command to address his problems. 3. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory and does not meet the requirements for 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) AR20150003570 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003570 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1