IN THE CASE OF: BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017484 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: 18 April 2017 DOCKET NUMBER: AR20150017484 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: 18 April 2017 DOCKET NUMBER: AR20150017484 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 under other than honorable conditions discharge. 2. The applicant states: * his conduct and efficiency ratings and proficiency marks were good; he followed orders and accomplished his duties * considering that he was only 16 years of age at the time, he believes he did a good job despite having no knowledge of what he was doing * he was close to finishing his enlistment; the discharge that he received was unfair * his misconduct was caused by drug abuse while he was stationed overseas * he went on leave and lost track of time * when he realized he was absent without leave (AWOL), he immediately turned himself in; being AWOL was a minor offense * his ability to serve was impaired by his immaturity and youth; he lacked the knowledge to live a normal teenage life * drugs caused him to make poor decisions * if rehabilitation had been available to help him with his drug problem, things might have been different 3. The applicant provides: * DD Form 214 (Report of Separation From Active Duty) * Statements of support * Marriage license 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’s records show he was born in July 1957 and enlisted in the Regular Army at 17 years of age on 19 July 1974. He was trained in and held military occupational specialty 51B (Carpenter). 3. He served in Korea from 14 December 1974 to around 3 February 1976. He was assigned to the 802nd Engineer Battalion. 4. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 14 November 1975, for being absent from his assigned place of duty, maintaining night watch of a water pump * 14 January 1976, for absenting himself from his appointed place of duty from 29 December 1975 to 5 January 1976 5. On 18 April 1976, he departed his unit in an AWOL status and on or about 17 May 1976, he was dropped from Army rolls as a deserter. He appears to have returned to military control on or about 9 October 1978. 6. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain: a. DA Form 31 (Request and Authority for Leave), dated 12 October 1978, placing him on excess leave, pending a discharge under chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). b. Memorandum, dated 23 October 1978, signed by the Personnel Officer, Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, informing him that he was administratively discharged due to conduct triable by court-martial under the authority of chapter 10 of AR 635-200. c. First Endorsement, dated 26 October 1978, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, showing his effective date of discharge as 30 October 1978. d. A DD Form 214 showing he was discharged on 30 October 1978 under the provisions of AR 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions characterization of service. He was issued an Undesirable Discharge Certificate. He completed 1 year, 9 months, and 15 days of active service during this period and he had 813 days of lost time. He was awarded or authorized the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar. 7. There is no indication he petitioned the Army Discharge Review Board for review of his discharge processing within that board’s 15 year statute of limitations. 8. He provides: a. A statement from a Rescue Mission Center, dated 14 May 2015, indicating he has stayed at the mission house several times. b. A statement from Our Daily Bread Soup Kitchen indicating he volunteered at the center. REFERENCES: 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 voluntary request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. There must have been no coercion. Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states 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 applicant's record is void of the facts and circumstances that led to his discharge. However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 30 October 1978 under the provisions of chapter 10 of AR 635-200 in lieu of a trial by court-martial with an undesirable discharge. 2. The issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. There is no evidence that would indicate the contrary. Further, it is presumed that the applicant's discharge accurately reflects his overall record of 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) AR20150017484 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017484 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2