IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150016677 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: 4 April 2017 DOCKET NUMBER: AR20150016677 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: 4 April 2017 DOCKET NUMBER: AR20150016677 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 upgrade of the characterization of his under conditions other than honorable (undesirable) discharge. 2. The applicant requests a personal appearance before the Board. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 21 September 2015, with which he makes his request. He provides no additional documents in support of his application. 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 31 December 1970 for a period of 2 years. a. He completed basic training and he was advanced to private (E-2) on 12 March 1971. b. He attended advanced individual training for military occupational specialty 95B (Military Police), but failed to complete the training. c. He was absent without leave (AWOL) for one (1) day on 3 May 1971. 3. Headquarters Command, U.S. Army Garrison, Fort Bragg, NC, Special Court-Martial (SPCM) Order Number 308, dated 18 October 1970, shows the applicant was tried by a SPCM on 6 October 1971. a. He was found guilty of the charge of violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from his unit from 1 June 1971 to 25 August 1971. b. He was sentenced to confinement at hard labor for 2 months, forfeiture of $95.00 per month for 4 months, and reduction to the grade of private (E-1). c. On 18 October 1971, the SPCM Convening Authority approved the sentence and ordered it duly executed. 4. On 6 June 1972, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL from his unit from 6 December 1971 to 1 June 1972. 5. On 9 June 1972, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request states that he was not subjected to coercion with respect to his request for discharge. The applicant acknowledged he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. d. The applicant and his counsel placed their signatures on the document. 6. The chain of command recommended approval of the applicant's request for discharge for the good of the service in lieu of trial by court-martial and that he be furnished an Undesirable Discharge Certificate 7. On 29 June 1972, the separation authority approved the applicant's request for discharge and directed he be furnished an Undesirable Discharge Certificate. 8. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 13 July 1972 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an Undesirable Discharge Certificate and a character of service of under conditions other than honorable. He had completed 6 months and 5 days of net active service during this period and he had 365 days of time lost. 9. A review of the applicant's military service records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Chapter 3, 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. Chapter 3, 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. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends, in effect, that he should be granted personal appearance before the board to present argument/evidence in support of his petition for upgrade of his discharge. 2. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. However, the evidence of record is sufficient to render a fair and equitable decision at this time. 3. The evidence of record shows that the applicant's request for discharge UP AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 4. The evidence of record shows the applicant was found guilty at a SPCM of being AWOL for a period of 85 days that resulted in his reduction to private (E-1) and confinement at hard labor for 2 months. He was then charged with a second period of prolonged AWOL. a. He had a total of 365 days of time lost. b. He completed just over 6 months of his 2-year active duty obligation. c. The characterization of service he received was commensurate with the reason for his 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) AR20150016677 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016677 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2