BOARD DATE: 24 January 2017 DOCKET NUMBER: AR20150015513 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: 24 January 2017 DOCKET NUMBER: AR20150015513 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: 24 January 2017 DOCKET NUMBER: AR20150015513 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, in effect, an upgrade of the characterization of his service. 2. The applicant states he was young and made a mistake when he enlisted in the Regular Army at age 17 because his girlfriend had broken up with him. 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 on 29 March 1966, at 17 years, 8 months, and 20 days of age. 3. The applicant's records show a summary court-martial convicted him of being absent without leave (AWOL) during the period 9 July through 17 July 1966. The court-martial was adjudged and approved on 20 July 1966. 4. Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service) of his DA Form 20 (Enlisted Qualification Record) contains the following entries: * 9 to 16 July 1966 – AWOL * 21 to 25 July 1966 – Confinement * 22 August 1966 to 2 January 1967 – AWOL * 28 January to 3 April 1967 – blank 5. The applicant's record contains an undated Request for Discharge for the Good of the Service in which, under the provisions of Chapter 10, Army Regulation 635-200 (Enlisted Personnel - Personnel Separations), he requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge. a. In his request, he acknowledged that he had not been subject to coercion with respect to his request for discharge, and he had been advised of the implications attached to it. b. He acknowledged he understood that, if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He understood that, because of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans' Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He acknowledged that he understood that, once the request was submitted, it may be withdrawn, whether or not accepted, only with the consent of the commander exercising general court-martial jurisdiction over him. d. Statements in his own behalf were not submitted with his request. e. Prior to completing his request, he was afforded the opportunity to consult with appointed counsel, or military counsel of his own choice, if reasonably available, or civilian counsel at his own expense. The applicant declined the opportunity to consult with counsel. 6. On 9 May 1967, his immediate commander recommended approval of the applicant's request and stated, "after a careful review of the applicant's records in conjunction with his negative attitude toward honorable service indicates that the best interest of the U.S. Army would be served with an approval of his request." 7. On 16 May 1967, the applicant's intermediate commander recommended approval of his request and stated, "review of available data, including a previous Summary Court-Martial for AWOL and two civil convictions during his last AWOL, indicate that subject enlisted man should be discharged for the good of the service." 8. On 19 May 1967, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions. On 2 June 1967, he was discharged accordingly. 9. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 7 months and 3 days of creditable active service with lost time for the periods 9 through 16 July 1966, 20 through 25 July 1966, 22 August 1966 through 2 January 1967, and 28 January through 3 April 1967. 10. There is no evidence indicating 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. a. Chapter 10 of that regulation provides, in pertinent part, 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 discharge under other than honorable conditions is 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 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's record shows he received a summary court-martial for being AWOL and evidence contained in his record indicates he continued to be AWOL on subsequent occasions. Despite the absence of a DD Form 458 (Charge Sheet) in his available military records, upon his latest incident it is presumed he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. Regardless, discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after declining the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 2. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service does not appear to meet the criteria for a general or an honorable characterization of service. 4. The applicant was over 18 years of age at the time of his offenses. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed their military 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) AR20150015513 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015513 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2