IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150004535 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, in effect, an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * he was on a 30-day leave and he was supposed to go back to Korea but he got in trouble * he was involved with drugs and ended up being arrested by the police; the police would not allow him to inform his unit and took all his military possessions; they locked hip up and denied him a military lawyer * he realizes he made a mistake by getting involved in drugs but he has turned his life around and he hopes the Board would consider his request * he would like to get services from the Department of Veterans Affairs 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 was inducted into the Army of the United States on 3 October 1968 and he held military occupational specialty 31M (Radio Relay and Carrier Operator). 3. He served in Korea from 9 September 1969 to 13 April 1970 (date he was due back from ordinary leave that started on 19 March 1970). On 13 April 1970, his unit reported him in an absent without leave (AWOL) 4. On 20 April 1970, his immediate commander conducted an inquiry into his whereabouts. The applicant was granted 25 days of leave from 19 March to 13 April 1970 for compassionate reasons (family problems). He did not return from leave. 5. On 13 May 1970, he was dropped from the rolls (DFR) as a deserter. 6. On 27 May 1970, the applicant appeared before the Superior Court, Mohave County, AZ, and after having entered a plea of guilty for possession of lysergic acid diethylamide (LSD) he was convicted of a felony charge and sentenced to imprisonment for 5 years, beginning on 26 April 1970. 7. On 27 January 1971, while still confined at the AZ State Prison in Florence, AZ, he was attached to the U.S. Army Special Processing Detachment, Fort McArthur, CA for administration and disposition. 8. He returned to military control on 5 April 1971. However, following his return, he was reported AWOL or DFR on four occasions: * 14 April 1971, AWOL * 2 June to 7 June 1971, AWOL * 7 June to 22 July 1971, DFR * 23 to 27 July 1971, AWOL 9. On 4 August 1971, his command preferred court-martial charges against him for three specifications of AWOL from 13 April 1970 to 6 April 1971, 14 to 15 April 1971, and 2 June to 23 July 1971. 10. The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable 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 voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Enlisted Separations). In his request for discharge, he acknowledged that: a. He was making the request of his own free will and he had not been subjected to any coercion. b. He understood that if the discharge request was approved he could be furnished an Undesirable Discharge Certificate. c. He understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 11. It appears the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. His records contain Special Orders Number 170, issued on 24 August 1971, ordering his discharge in accordance with Army Regulation 635-200, chapter 10, effective 25 August 1971. 12. The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial, in accordance with chapter 10 of Army Regulation 635-200, with an undesirable discharge. He completed a total of 1 year, 3 months, and 3 days creditable active military service and he had a total of 415 days of lost time. 13. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. An undesirable discharge was considered appropriate at the time. 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 record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 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. His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service. 2. Based on his record of indiscipline which included multiple instances of AWOL and a conviction by civil court, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. He does not meet the criteria 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) AR20150004535 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004535 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1