BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011874 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: 28 June 2016 DOCKET NUMBER: AR20150011874 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: 28 June 2016 DOCKET NUMBER: AR20150011874 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 discharge. 2. The applicant states he did not know his discharge could be upgraded. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and two third-party statements of support. 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 on 1 November 1971. 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: a. 28 February 1973, for being drunk and disorderly in quarters; b. 24 May 1973, for being absent from his unit without authority for two days; c. 31 July 1973, for violating a lawful general regulation by operating a motor vehicle at excessive speed; d. 16 August 1973, for two specifications of failing to go at the time prescribed to his appointed place of duty; e. 17 September 1973, for failing to go at the time prescribed to his appointed place of duty; f. 22 October 1973, for leaving his place of duty without authority and for causing a breach of the peace by creating a disturbance; and g. 19 December 1973, for disobeying a lawful order from his superior noncommissioned officer. 4. On 29 April 1974, he was found guilty by a summary court-martial of sleeping upon his post, while being posted as a sentinel and for failing to go at the time prescribed to his appointed place of duty. 5. The applicant's records show he departed absent without leave (AWOL) on 1 May 1974 and he returned to military control on 3 June 1974. His records further show he again departed AWOL on 24 June 1974 and he remained AWOL until he was apprehended by civilian authorities on 16 August 1974. 6. His records are void of a DD Form 458 (Charge Sheet); however, his records show that on 27 August 1974, he consulted with legal counsel and voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge. 7. In doing so, he acknowledged he was guilty of the charge(s) against him. He further acknowledged that: * 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 8. On 5 September 1974, the separation authority approved his request for discharge and the issuance of an undesirable discharge. On 10 September 1974, he was discharged accordingly. His DD Form 214 shows he accrued 94 days of lost time and his service was characterized as under other than honorable conditions. 9. There is no evidence that indicates he applied to the Army Discharge Review Board for an upgrade of his discharge. 10. He provides two third-party statements of support that attest to his positive post-service conduct and accomplishments. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. 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: 1. The available evidence shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. 2. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid 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. 3. His record of indiscipline includes NJP on seven occasions, a summary court-martial conviction, and additional court-martial charges. Based on the seriousness of his misconduct, and in view of the fact that he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now. 4. The third-party letters of support submitted by the applicant were carefully considered; however, these documents do not show his separation processing and/or the character of service were unjust or attributed in error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011874 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011874 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2