BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009172 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 BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009172 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. BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009172 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 general, under honorable conditions, discharge to an honorable discharge. 2. The applicant states at the time of his discharge he was told a general discharge could be upgraded after 7 years and it is well past that time. 3. The applicant provides no 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. The applicant enlisted in the Regular Army (RA) on 2 March 1966 and he held military occupational specialty 52B (Power Plant Operator). On 13 February 1967, he was promoted to the rank/grade of specialist four (SP4)/E-4. On 18 May 1967, he was honorably discharged for the purpose of immediate reenlistment. 3. He reenlisted in the RA on 19 May 1967. On 14 October 1968, he was promoted to specialist five (SP5)/E-5. He served in Vietnam from 19 September 1968 to 19 September 1969. 4. On 23 July 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failing to go to his appointed place of duty at the prescribed time and for leaving his place of duty without the proper authority. On 9 April 1970, he was honorably discharged for the purpose of immediate reenlistment. 5. He reenlisted in the RA on 10 April 1970. He served in Vietnam from 18 June 1970 to 16 April 1971. On 27 May 1971, he was assigned to the 172nd Ordnance Detachment, 701st Maintenance Battalion, Fort Riley, KS. 6. On 8 June 1972, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from his assigned unit from 31 May to 8 June 1972 (9 days). 7. On 10 July 1972, he was reported as AWOL from his assigned unit. On 11 November 1972, he was returned to military control and assigned to the U.S. Army Personnel Control Facility (PCF), Fort Polk, LA. 8. On 16 November 1972, court-martial charges were preferred against him for being AWOL from 10 July to 10 November 1972 (124 days). 9. On 17 November 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the 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 Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request, he acknowledged that he had not been subjected to coercion with respect to his request for a discharge and had been advised of the implications that were attached to it. 10. He further acknowledged that he understood if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He acknowledged he understood that as a result of such a discharge, he might be ineligible for many or all Amy benefits, many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both State and Federal laws. He also acknowledged that he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. 11. In a statement he submitted In his own behalf, he stated he felt he could not return to any unit in the Army and conduct himself as a Soldier. He wished to live with his mother and father and help them with his dependent sister and brother. 12. On 27 November 1972, his immediate and senior commanders recommended approval of his request for a discharge with the issuance of a General Discharge Certificate. 13. On 1 December 1972, the separation authority approved his request for a discharge under the provision of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed the issuance of a General Discharge Certificate. On 6 December 1972, he was discharged accordingly. 14. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 - for the good of the service in lieu of trial by court-martial (separation program number (SPN) 246), with an under honorable conditions (general) characterization of service. He completed 2 years, 3 months, and 8 days of net active service and this period had 133 days of lost time due to being AWOL. 15. There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 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. The member would be advised of the procedures and rights available to him, 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 was normally considered appropriate (emphasis added). 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: 1. The evidence of record confirms the applicant 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. 2. As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 3. The evidence of record confirms at the time of his discharge he had 133 days, or almost 5 months, of lost time due to being AWOL. Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. He does not meet the criteria for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009172 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009172 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2