BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160001018 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 August 2017 DOCKET NUMBER: AR20160001018 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 August 2017 DOCKET NUMBER: AR20160001018 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 to his under conditions other than honorable discharge. 2. The applicant states, in effect, he would like to be able to apply for Department of Veteran Affairs (VA) benefits, to include, but not limited to, funeral and burial honors, medical, and educational benefits. He would also like to have the American flag draped on his coffin when he passes away. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge.) 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. On 14 April 1964, the applicant was inducted into the Army of the United States, in Puerto Rico. After initial and advanced individual training (AIT), he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman.) 3. His DA Form 20 (Enlisted Qualification Record) shows on 15 January 1965, he was assigned to Company B, 1st Battalion, 52nd Infantry, Fort Hood, TX. 4. His record shows on 3 March 1965, while assigned to Company B, 1st Battalion, 52nd Infantry, 1st Armored Division, Fort Hood, TX, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report to "kitchen police" (KP) duty and for "detail" on time. He received extra duty and restriction for 14 days, forfeitures of $20.00 per month for one month, and a reduction in pay grade to private (PVT)/E-2. 5. The applicant’s record shows he was in an AWOL status on 14 July 1965 and remained in this status until he turned himself him to military authorities in April 1972. 6. A letter issued by Headquarters, Third United States Army – Puerto Rico, Fort Buchanan, Puerto Rico, Office of the Chaplain, subject: Extenuating Circumstances, dated 19 April 1972, states on 18 April 1972, the applicant turned himself in to the Chaplain’s Office in Puerto Rico. After talking to the applicant, the Chaplain noted the applicant fully understood the seriousness of the offense he was being charged with and was willing to accept the consequences. However, it was noted that given the applicant’s home situation, some consideration should be given to the circumstances surrounding his hardship regarding his family, and the attempts through Red Cross to secure a leave extension due to two members of his family being hospitalized, with no response from the Red Cross. The Chaplain further stated the applicant understood his military obligation, but at the same time, he had the responsibility to support his eight brother and sisters who still lived at home with his parents and were unable to provide for themselves, since the father was in the hospital as well. Furthermore, the applicant did not speak and understand English very well; therefore, he might need a Spanish translator to understand the legal consequences of his actions and to ensure that all matters were carefully explained to him. 7. The applicant’s record contains a DD Form 458 (Charge Sheet), dated 21 April 1972, which shows he was charged with being absent without leave (AWOL) from 14 July 1965 until on or about 20 April 1972. 8. His record contains a Standard Form (SF) 88 (Report of Medical Examination), dated 24 April 1972, which shows he received a separation physical and he was found to be in good health and met medical retention standards. 9. His record contains a mental status evaluation, dated 24 April 1972, which showed no significant mental illness or negative behaviors and that he met retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 10. On 2 May 1972, he 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 other than honorable discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel and without coercion, 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. 11. In the applicant’s request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser-included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 12. The applicant’s military defense counsel also submitted a statement on his behalf stating the following, in support of his request for a voluntary request for discharge. a. He was 27 years old and born in Puerto Rico, where he completed 12th grade. He was married and has one child. He enlisted for a term of 2 years. After completing AIT, he went on leave to see his parents in Puerto Rico. When he arrived, he discovered that his father, who had heart trouble, was in the hospital, and that his younger brother had been in an accident and was in serious condition. He called Red Cross to ask for additional leave because his father and brother were both in the hospital. He was told that he would need a doctor’s statement, but once he obtained the statement from the doctor and provided it to the Red Cross, he never again heard from the Red Cross (a letter from the Medical Director at San Juan City Hospital, Santurce, Puerto Rico, is enclosed.) b. He was the eldest of 11 children and was responsible for the care and welfare of the rest of the family. After one month, the applicant returned to Red Cross to ask why he had not received any notification. The Red Cross told him they had many cases and that he would have to wait. The financial situation at home was not getting any better, so he remained at his parent's home to work and provide for the family. c. Once things had settled a bit, the applicant returned to military control so he could clear up his situation with the Army. He flew back from Puerto Rico to his unit. Despite his limited understanding of the English language, he presented a sincere desire to right his problems. Because of his severe hardships, the fact that the problems were not of his own making, and since he completed over 14 months of his 2-year tour, the applicant's defense counsel recommended granting him a discharge from the Army. 13. A Memorandum For Commanding General, issued by Headquarters III Corps and Fort Hood, Fort Hood TX, Office of the Staff Judge Advocate, subject: Request for Discharge for the Good of the Service of Applicant, Under the Provisions of Chapter 10, Army Regulation 635-200, dated 12 May 1972, states: [The applicant] attended basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Polk, Louisiana. After this training, he indicates that he served at Fort Hood, Texas. He apparently was on leave en-route to Fort Benning, Georgia, when he went AWOL. …The requirements of Chapter 10, A[rmy] R[egulation] 635-200 have been fulfilled, and the information contained herein is sufficient to warrant separation. The subject’s commanding officer has recommended that you approve this request. I agree. It is recommended that you approve this request for separation for the good of the service and that an undesirable discharge certificate be issued. 14. On 12 May 1972, an action letter, issued by Headquarters III Corps and Fort Hood, Fort Hood TX, approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial. In addition, they ordered the issuance of an Undesirable Discharge Certificate and reduction of the applicant to PVT/E-1. 15. On 18 May 1972, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service; he received a characterization of under conditions other than honorable. He completed 1 year, 3 months, and 5 days of creditable active military service with 1,769 days of lost time. 16. There is no evidence indicating the applicant applied to the Army Discharge Review Board 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. 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 and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time. a. 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. b. Paragraph 3-7b states 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 requests that the Board upgrade his discharge because his quality of life would improve, he could receive full funeral honors, and he could apply for VA benefits, including educational benefits, and have an American flag draped over his casket when he passes away. 2. The applicant’s record contains an NJP and a history of an extensive period of AWOL. At the time of the applicant’s AWOL, he claimed that he had family issues and that his family needed him. However, no matter his personal reasons for going AWOL and his reason now for wanting an upgrade to his discharge, he did not contact his chain of command for assistance and only contacted the Chaplain when he turned himself in after he had been AWOL for 1,769 days. Upon his return to his command, he was pending trial by court-martial and voluntarily requested and accepted the terms of a discharge in lieu of trial by court-martial. 3. The evidence of record indicates that the applicant did not intend to go AWOL, but upon arriving home and finding out that his father and brother were both in the hospital, in serious condition, he made an emotional decision to go AWOL. It also appears, based on the letter from his military defense counsel, that the applicant attempted to contact the Red Cross and provide the appropriate medical documentation needed for his command to authorize either extension of leave or possibly grant him a compassionate reassignment of duty. 4. The evidence shows that after receiving the advice of legal counsel, he understood the seriousness of his offense, was prepared to accept the consequences of his decision to go AWOL, and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 5. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The separation authority, having reviewed the available records, determined the applicant's service would be characterized as under other than honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001018 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001018 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2