BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001254 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: 19 September 2017 DOCKET NUMBER: AR20160001254 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: 19 September 2017 DOCKET NUMBER: AR20160001254 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 a general, under honorable conditions discharge. 2. The applicant states: * he was starting a family when he was drafted * he had to take care of his dying mother, who eventually died * he had to support his family * he is asking that the board consider changing his discharge from undesirable to general * he has not been in any trouble since * his wife and first born have passed away 3. The applicant provides no additional documentation in support of his case. 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 was inducted into the Army of the United States (AUS) on 29 September 1969. 3. On 22 March 1970, he departed his unit in an absent without leave (AWOL) status. He returned to military control at Fort Sill, OK, on 18 August 1970. 4. On 1 September 1970, he was found guilty and convicted by a special court-martial of one specification of being AWOL from 22 March to 17 August 1970. The court sentenced him to be confined at hard labor for five months and to forfeit $45.00 per month for five months. The convening authority approved only four months of hard labor and forfeiture of $45.00 a month for four months. 5. On 21 September 1970, he arrived at Fort Riley, KS, to serve his confinement. 6. Special Court-Martial Orders Number 734, remitted all unexecuted portions of his sentence to confinement at hard labor and forfeiture of pay, effective 18 November 1970. 7. On 18 November 1970, he departed Fort Riley, KS, enroute to Fort Hood, TX. He subsequently served at Fort Hood, TX, from on or about 19 November 1970 to on or about 15 February 1971. 8. On 16 February 1971, he departed his unit in an AWOL status. He was returned to military control on 4 January 1972 and placed in pre-trial confinement until 19 January 1972. 9. The complete facts and circumstances of the applicant's discharge processing are not available for review. His record does contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was discharged for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with an under other than honorable conditions discharge. He was assigned Separation Program Number 246 (discharge for the good of the service in lieu of trial by court-martial). He completed 9 months and 3 days of net active duty service and he had 577 days of lost time. 10. There is no evidence the applicant petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 in lieu of trial by court-martial at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. The member would be advised of the procedures and rights available to him, the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. The member would also be given an opportunity to submit a statement. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record confirms the applicant went AWOL on at least two occasions. In addition, he was convicted by a special court-martial for being AWOL from 22 March to 17 August 1970. At the time of his discharge he had 577 days of lost time due to being AWOL and in confinement. 2. Under the provisions of Army Regulation 635-200, chapter 10, the applicant would have had to voluntarily request discharge to avoid trial by a court-martial. In conjunction with his request, he would have been given an opportunity to submit a statement regarding his reasons for going AWOL for consideration by the separation authority. The evidence indicates the separation authority did not find any mitigating circumstances that warranted a more favorable characterization of service. 3. In the absence of evidence to the contrary, it is presumed the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time. The type and character of the discharge are commensurate with his overall record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001254 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001254 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2