IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150016978 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: 13 April 2017 DOCKET NUMBER: AR20150016978 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: 13 April 2017 DOCKET NUMBER: AR20150016978 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 his under other than honorable conditions (UOTHC) discharge. 2. The applicant states: a. neither his lawyer nor The Judge Advocate General (JAG) advised him that he was being discharged under the provisions Chapter 10, Army Regulation 635-200 (Enlisted Separations); b. his lawyer or the JAG officer lied or made a mistake when he was told he would receive a general discharge (GD), under the provisions of Chapter 13, Army Regulation 635-200; c. he never saw his discharge papers because they were destroyed by a fire at his home two days after his discharge; believed that he had a GD for the past 40 years; and d. it was wrong to depart absent without leave (AWOL); however, no one asked if he wanted a court-martial; he was offered a discharge by reason of Chapter 13 with the issuance of a GD. 3. The applicant provides a self-authored statement and a copy of his DD Form 214 (Report of Separation from Active Duty). 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 4 February 1974. Upon completion of the training requirements he was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. On 24 July 1974, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for departing his unit in an AWOL status from 18 to 23 July 1974. 4. A DD Form 458 (Charge Sheet), shows on 5 August 1975, the applicant signed court-martial charges preferred against him for violating Article 86 of the UCMJ by departing his unit in an AWOL status from 24 January to 28 July 1975. 5. A second DD Form 458 shows on 10 October 1975, while assigned to the U.S. Army Personnel Control Facility, Fort Bragg, NC, court-martial charges were preferred against the applicant for violating Article 86 of the UCMJ (2 specifications) by being AWOL on or about the following dates: * 28 August to 4 September 1975 * 8 to 16 September 1975 6. The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily 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. He indicated he had not been subjected to coercion whatsoever by any person and made his request of his own free will. 7. In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he could face substantial prejudice in civilian life if he were issued an Undesirable Discharge Certificate. 8. A self-authored statement, dated October 1975, shows the applicant acknowledged, “I (the applicant’s name) understood what I am charged with. I applied for a chapter ten because it would be the best thing for me. I cannot adjust to military standards and if I stayed in I would do the same thing over again. I really think out is the best thing for me.” 9. On 10 October 1975, the Commander, U.S. Army Personnel Control Facility, Fort Bragg, NC, personally conducted an interview with the applicant and the applicant acknowledged that he was aware of the nature of the interview and the consequences of an Undesirable Discharge Certificate; however, he desired elimination from the service under the provisions of chapter 10, Army Regulation 635-200. Additionally, the commander indicated: a The applicant stated that “his AWOLs were caused by his inability to cope with the Army’s environment.” He further stated that, “he has no intentions of trying to adjust and that he desires to be discharged.” b. In view of the above and the applicant’s personal conduct, his attitude toward military life, and his lack of rehabilitative potential, “I recommend approval of his request for discharge under the provisions of Army Regulation 635-200, chapter 10.” c. “Recommend issuance of an Undesirable Discharge Certificate in this case.” 10. On 15 October 1975, the intermediate commander recommended approval with the issuance of an Undesirable Discharge Certificate. 11. On 24 October 1975, the approval authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 with an Undesirable Discharge Certificate. 12. On an unknown date, the applicant was placed in an excess leave status for a period of 39 days. 13. On 24 November 1975, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 2 months, and 23 days of net active service. He accrued 208 days of lost time and he had 39 days of excess leave. 14. On 15 October 2015, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, his application exceeded the ADRB's 15-year statute of limitations. Therefore, the ADRB’s staff rerouted his case to the ABCMR. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 discharge (HD) or GD is authorized, an UOTHC discharge s is normally considered appropriate. However, an undesirable discharge was considered appropriate at the applicant’s time of discharge. b. Paragraph 3-7a provides that an HD 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 provides that a GD 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 HD. DISCUSSION: 1. The applicant’s contention that he was dishonestly told he would be discharged under the provisions of Chapter 13, Army Regulation 600-200 with a GD is not supported by the available evidence. 2. The available evidence confirms he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge by being AWOL from 28 August to 4 September 1975 and from 8 to 16 September 1975. After consulting with legal counsel, he voluntarily requested discharge under the provisions of Chapter 10, Army Regulation, in lieu of trial by court-martial to avoid possible incarceration and a felony conviction. 3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. His service did not support an HD or a GD at the time of his discharge, nor would it be appropriate to upgrade his discharge now. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016978 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016978 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS (ABCMR) Enclosure 2