IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150012905 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: 28 June 2016 DOCKET NUMBER: AR20150012905 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: 28 June 2016 DOCKET NUMBER: AR20150012905 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. 2. The applicant states he enlisted for training as a postal clerk. While in basic training, his military occupational specialty (MOS) was changed. He was sent to Fort Lee, VA for computer/missile training. All cadre were Airborne and harassed him to the point of going absent without leave (AWOL). 3. The applicant provides 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 enlisted in the Regular Army (RA) for a 2-year term on 22 November 1972. His DD Form 4 (Enlistment Contract-Armed Forces of the United States) shows he enlisted for the "Regular Army Enlistment Option." 3. He completed basic combat training at Fort Leonard Wood, MO, and he was reassigned to Fort Lee, VA, for completion of advanced individual training in MOS 76P (Stock Control and Accounting Specialist). 4. On 5 March 1973, he departed his Fort Lee unit in an AWOL status but he returned to military control on 10 March 1973. 5. On 12 March 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from 5 to 10 March 1973. 6. On 16 March 1973, he again departed his training unit in an AWOL status, and on 15 April 1973, his unit dropped him from the rolls as a deserter. On 8 June 1973, he was apprehended by civil authorities in Memphis, TN, and he was confined in the Shelby County Jail. 7. He was returned to military authorities on 8 June 1973, and he was assigned to the U.S. Army Personnel Control Facility at Fort Campbell, KY, for disposition of his charges. 8. On 19 June 1973, his chain of command preferred court-martial charges against him for one specification of AWOL from 16 March 1973 to 8 June 1973. 9. On 26 June 1973, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged and/or he understood: * he was submitting this request of his own free will and had not been coerced by anyone; he also understood the implications of his request * if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits, and he could 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 both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life * he elected to submit a statement in his own behalf 10. In his statement, the applicant stated: * he understood that he would be getting an undesirable discharge and that no one was telling him what to do; no one was pushing him; he was just having other problems * he did not like the Army because of all the rules it had; he wanted to help his family financially in light of his father's accident at the time * he went out to help pay the bills given his father's bad back and the uncertainty of his medical situation * he had 4 brothers and 2 sisters and he needed to get them some money; while he was AWOL, he was painting and making money * he did not want an undesirable discharge but if he had to, he would; the Army should help him get out 11. On 26 and 28 June 1973, his immediate and intermediate commanders recommended approval of the discharge action with the issuance of an undesirable discharge. 12. On 2 July 1973, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade, if applicable, and issue of an Undesirable Discharge Certificate. On 9 July 1973, the applicant was accordingly discharged. 13. The DD Form 214 he was issued shows he was discharged under the provisions of chapter 10 of AR 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge. He completed 4 months and 20 days of total active service during this period and he had 89 days of lost time. 14. On 13 May 1976 and 21 March 1979, the Army Discharge Review Board (ADRB) reviewed his discharge and in each case the ADRB determined he was properly and equitably discharged and denied his petition for an upgrade of his discharge. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may 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 or general discharge is authorized, a under other than honorable conditions discharge is normally considered appropriate. b. Paragraph 3-7a states 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 states 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 2. The applicant's available records do not show and he has not provided any evidence showing he was promised training as a postal clerk upon his enlistment in the RA. His DD Form 4 shows he enlisted for the "Regular Army Enlistment Option." Additionally, there would have been other legitimate avenues to address any training issues had he elected to use them. He could have also elected trial by a court-martial if he believed there were extenuating circumstances that led to his AWOL offenses. 3. Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. His service does not meet the criteria for an honorable or a general 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) AR20150012905 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012905 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2