IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150007798 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 (UOTHC) discharge to a general discharge under honorable conditions. 2. The applicant states, in effect, his chance for a career was destroyed. He got hyperkeratosis in Germany and went absent without leave (AWOL) because the doctors did nothing to help him. They knew that he could not be out in the cold weather. He was unjustly charged with assaulting five white Soldiers from another platoon. They did not like black Soldiers and specifically did not like him because he won an outstanding leadership award in basic training. 3. The applicant did not provide any additional evidence. 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. On 14 July 1972 the applicant enlisted in the Regular Army. 3. His DA Form 20 (Enlisted Qualification Record) shows he was: * AWOL from 5 October to 9 October 1972 * AWOL from 28 December 1972 to 4 February 1973 * AWOL from 2 January 1974 to 20 February 1974 * AWOL from 2 May 1974 to 12 August 1974 4. His DA Form 20B (Insert Sheet to DA Form 20) shows two special court-martial convictions for: * AWOL from 5 October to 10 October 1972 and disobeying the order of a non-commissioned officer (NCO) on 31 October 1972 * AWOL from on or about 2 January 1974 to 21 February 1974 5. On 13 August 1974, a DD Form 458 (Charge Sheet) was completed charging the applicant with being AWOL from 2 May 1974 to 13 August 1974. 6. On 14 August 1974, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an undesirable discharge, and of the rights available to him. 7. After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). a. He acknowledged that: * he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge * he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge * he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veterans' Administration * he could be deprived of his rights and benefits as a veteran under Federal and State law * he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge b. In his personal statement in support of his request for discharge, he stated: * he would try to better himself * he wanted a chapter 10 because he and his wife had two kids, and he couldn’t take care of them in the Army because he didn’t know when they would pay him * if he were to return to duty he would not be a good Soldier and would go AWOL again and again * he understood what a undesirable discharge was and willfully accepted it * he understood that he would lose his benefits such as payment for accrued leave and burial flags 8. On 4 October 1974, the separation authority approved the applicant's request and directed that he receive an undesirable discharge. He was subsequently discharged in accordance with the separation authority's decision with his service characterized as UOTHC. He completed 1 year, 8 months, and 6 days of total active service with 195 days of lost time. 9. On 19 November 1975, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged. 10. On 29 July 1988 and 9 August 1991, the applicant appealed the ADRB’s decision. On 7 October 1991, his request was denied after personally appearing before the Board. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 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. Although an honorable discharge or general discharge is authorized, a discharge characterization of UOTHC was normally considered appropriate. b. 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. c. 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. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The record shows the applicant was AWOL for four periods, and his last period of AWOL lasted over 6 months. He was twice convicted at a special court-martial for two separate periods of AWOL. Based on his last period of AWOL, he could have been tried by court-martial and punished with a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel and it was recommended he voluntarily request separation from the Army in lieu of trial by court-martial. 2. There is no evidence in the available records to support the applicant’s contention that health problems or racism were involved in the incidents which led to his discharge, and he provides none. The evidence of record clearly shows he was AWOL and upon his return, he chose the discharge action in lieu of a third trial by court-martial that could have imposed a punitive discharge. 3. The record contains no indication of procedural or other administrative errors that would have jeopardized the applicant’s rights. Based on his personal misconduct of 6 months of AWOL, his UOTHC discharge service characterization was appropriate. 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) AR20140000352 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007798 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1