IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008829 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008829 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008829 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 undesirable discharge to honorable. 2. The applicant states: * he received improper counsel * there was a lack of due diligence of law * he was not properly represented nor was he given good counsel by his military lawyer * being a young man at the time, he didn't know what options were available to him * his attorney told him there was not enough evidence to convict him in a court-martial * his attorney asked him if he was ready to go home and he said yes, not knowing the impact of his response * shortly after that he received his discharge papers 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's military records are not available for review. A search for his service records from the National Archives and Records Administration was unsuccessful. This case is being considered based on the evidence provided by the applicant. 3. His DD Form 214 shows: * he was born on 27 June 1946 * having prior active enlisted service, he reenlisted in the Regular Army on 31 October 1968 for a period of 3 years * he served in Vietnam from 16 January 1969 to 12 August 1970 4. His records are void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 12 August 1970 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and assigned separation program number 246 (discharge for the good of the service). He completed 4 years, 4 months, and 3 days of total creditable active service and accrued 159 days of lost time for the following periods of absence without leave: * 13 June 1969-26 July 1969 (44 days) * 3 October 1969-20 January 1970 (110 days) * 21 January 1970-25 January 1970 (5 days) 5. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 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 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 Veterans Administration 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. Chapter 10 of the version currently in effect is essentially unchanged. b. Paragraph 3-7a of the current version 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 of the current version 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: 1. The applicant implies he was young; however, age is not a sufficiently mitigating factor. He was 22 years of age when he reenlisted in 1968. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. Further, he completed 3 years of honorable service prior to the period of enlistment under review. 2. His remaining contentions were carefully considered. However, his records are void of the specific facts and circumstances surrounding his discharge. It appears that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008829 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2