BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017373 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: 4 May 2017 DOCKET NUMBER: AR20150017373 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: 4 May 2017 DOCKET NUMBER: AR20150017373 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 his undesirable discharge be upgraded to an honorable discharge. 2. The applicant states he "resigned" from the service although he enlisted for Korea to take care of his mother, father, and sisters. His twin brother was serving in Vietnam. He is unable to attend a personal appearance because he has three brain tumors and is unable to travel. 3. The applicant provides no supporting documentation. 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 6 March 1967, completed training, and was awarded military occupational specialty 11E (Armor Crewman). 3. On 5 December 1967, the applicant was reported absent without leave (AWOL). He was dropped from the rolls (DFR) on 8 December 1967 and returned to military control on 14 April 1968. 4. On 13 March 1969, he was convicted by a special court-martial of one specification each of being AWOL from 5 December 1967 until 15 April 1968 and from 20 April 1968 until 17 February 1969. He was sentenced to confinement at hard labor for 6 months and forfeiture of $70.00 per month for 6 months. 5. Special Court-Martial Order Number 349, dated 28 April 1969, ordered all unexecuted portions of the applicant’s confinement suspended until 22 May 1969, at which time they were to be remitted without further action. 6. On 11 June 1969, the applicant was reported AWOL and he was DFR on 10 July 1969. On 20 October 1969, he surrendered to military authorities at Fort Riley, KS. 7. On 25 November 1969, court-martial charges were preferred against the applicant for one specification of being AWOL from 11 June until 20 October 1969. 8. On 30 January 1970, he consulted with legal counsel and, after being advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge and the procedures and rights available to him, he submitted a request for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. In his request, he acknowledged that he had been advised of the implications that were attached to his request for discharge. 9. He further acknowledged that he understood if his request was accepted, he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, and that as a result of the issuance of such a discharge, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State law, and he could expect to encounter substantial prejudice in civilian life. He submitted a five-page statement on his own behalf. 10. In the statement he submitted, he stated, in effect, that his first AWOL was due to his need to support his family after his father fell ill and could not work. His second AWOL was due to his chain of command not granting his request for assignment to an airborne unit, being denied the right to put his training to work, and being stuck in Fort Riley doing office work. He further stated that he wanted an opportunity to secure a future for his wife and baby. He concluded his statement by saying that he really loved the Army, but for the betterment of the service he wished to be granted or considered for separation from the Army. 11. On 20 February 1970, the separation authority approved his request for a discharge and directed that he be issued an Undesirable Discharge. 12. On 4 March 1970, the applicant was discharged under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial (separation program number (SPN) 246), with an under other than honorable conditions characterization of service. He completed 1 year, 2 months, and 25 days of credible active service and he had 634 days of lost time due to being AWOL and in confinement. 13. On 19 January 1982, the applicant received a letter from the Army Discharge Review Board advising him that his request for a discharge upgrade was denied. REFERENCES: AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses 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. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 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, 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. DISCUSSION: 1. The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. As such, he voluntarily requested a discharge to avoid a trial by court-martial. His 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 reason for separation were appropriate considering all the facts of the case. 3. Based on his overall record, his service did not meet the standards of acceptable conduct for Army personnel. This misconduct also rendered his service unsatisfactory. It appears his service does not rise to the level required 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) AR20150017373 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017373 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2