BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150004672 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 discharge characterization from under other than honorable conditions to under honorable conditions (general). 2. The applicant states that at the time he was young and his mother was very ill. His chain of command would not let him take leave so he went absent without leave (AWOL). He would not have gone AWOL if his command had been more understanding with his family problems. 3. The applicant provides a copy of 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 13 January 1966 at the age of 22. He served in military occupational specialty 11B (Light Weapons Infantryman). The highest rank/grade he attained was specialist four/E-4. 3. Special Court-Martial Order Number 21, issued by Headquarters, 2nd Squadron, 17th Cavalry Regiment, Fort Campbell, Kentucky on 17 November 1966, shows the applicant was convicted at a special court-martial (SPCM) on 14 November 1966 of being AWOL from on or about 10 October 1966 until on or about 18 October 1966. 4. He accepted non-judicial punishment (NJP) on 5 April 1967, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 20 March 1967 until on or about 28 March 1967. 5. Special Court-Martial Order Number 701, issued by Headquarters, Special Troops, Fort Jackson, South Carolina on 16 September 1967, shows he was convicted at a SPCM on 12 September 1967 of being AWOL from on or about 1 May 1967 until on or about 2 August 1967. 6. Special Court-Martial Order Number 788, issued by Headquarters, Special Troops, Fort Jackson, South Carolina on 11 October 1967, states the unexecuted portion of the sentence to confinement at hard labor for 4 months, promulgated in SPCM Order Number 701, was suspended for 3 months, effective 12 October 1967, unless the suspension was sooner vacated. 7. A DA Form 616 (Report of Return of Absentee), dated 15 January 1968, states the applicant went AWOL on or about 13 October 1967 and was dropped from rolls (DFR) of the Army on 11 November 1967. He was apprehended by civilian authorities on 27 December 1967 and returned to military control on 3 January 1968. 8. Special Court-Martial Order Number 48, issued by Headquarters, Special Troops, Fort Jackson, South Carolina on 22 January 1968, stated the unexecuted portion of the sentence to confinement at hard labor for 4 months, as approved in SPCM Order Number 701, would be executed. The applicant was confined to the post stockade at Fort Jackson, South Carolina. 9. His record does not contain a DD Form 458 (Charge Sheet), which is typically a precursor to a Soldier requesting a discharge for the good of the service in lieu of a trial by court-martial. However, it appears court-martial charges were preferred against him. 10. After being afforded the opportunity to consult with counsel, he declined, and on 4 January 1968, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. 11. In doing so, he acknowledged the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 12. He elected not to submit a statement in his own behalf. 13. Special Court-Martial Order Number 119, issued by Headquarters, Special Troops, Fort Jackson, South Carolina on 8 February 1968, remitted the unexecuted portion of the approved sentence to confinement at hard labor for 4 months, as promulgated in SPCM Order Number 701, effective 12 February 1968. 14. The separation authority approved his request for discharge on 30 January 1968, under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate. 15. The applicant was discharged accordingly on 12 February 1968. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his character of service was under conditions other than honorable with the issuance of an Undesirable Discharge Certificate. He served 1 year, 3 months, and 21 days of total active service and accrued approximately 250 days of lost time. 16. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, 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, 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 to an individual who was discharged for the good of the service. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge to under honorable conditions (general) was carefully considered. 2. The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After declining legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 4. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of Army personnel as evidenced by his record of indiscipline including NJP and two special court-martial convictions for AWOL. Accordingly, his chain of command recommended his elimination from the Army. His discharge accurately reflects his overall record of service. 5. He contends that his discharge should be upgraded because he was young, his mother was ill and his chain of command would not let him go on leave. Records show the he was over 22 years of age at the time of his offenses. However, there is no evidence that indicates he was any less mature than other Soldier of the same age who successfully completed military service. Also, there is no evidence nor does he provide any that his chain of command failed to assist him with his family problems. As such, there is a presumption of administrative regularity in the processing of his separation from active duty. 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) AR20140018210 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004672 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1