BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160001397 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: 18 July 2017 DOCKET NUMBER: AR20160001397 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: 18 July 2017 DOCKET NUMBER: AR20160001397 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 discharge his under other than honorable conditions to honorable. 2. The applicant states he received an undesirable discharge because he has flat feet. He also states the Department of Veterans Affairs (VA) granted him service connection with a 10-percent disability rating for flat feet. 3. The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a VA letter. 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 3 August 1970 for a period of 3 years. a. He was awarded military occupational specialty 13A (Field Artillery Basic). b. He was assigned to Germany on 13 December 1970 and he was advanced to the rank of private first class/pay grade E-3 on 6 February 1971. 3. He received nonjudicial punishment (NJP) on four occasions as follows: * on 22 January 1971, for failing to go at the time prescribed to his appointed place of duty * on 23 March 1971, for being disorderly in public on 27 February 1971 and for being absent from his place of duty (two specifications) on 18 March and 19 March 1971 – he was reduced to the rank of private/E-2 * on 28 May 1971, for assaulting a Soldier by striking him on the head * on 22 July 1971, for absenting himself from his unit from 12 to 21 July 1971 4. A DA Form 19-32 (Military Police Report), dated 26 September 1971, shows the applicant was detained pending investigation by the U.S. Army Criminal Investigation Division because he became disorderly and belligerent toward a drill sergeant and he was in possession of two ration cards that did not belong to him. This form shows the applicant was informed of the charges against him. 5. A review of the applicant's military personnel record failed to reveal a charge sheet. 6. On 22 October 1971, the applicant consulted with legal counsel. He was informed of the charges against him for violating the Uniform Code of Military Justice and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of lesser-included offense(s) that also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he could be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he could be furnished an Undesirable Discharge Certificate. d. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. e. The applicant and his counsel placed their signatures on the request for discharge. 7. On 29 October 1971, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that he be furnished an Undesirable Discharge Certificate. 8. The applicant's DD Form 214 shows he was discharged on 8 November 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 10-1. He completed 1 year, 3 months, and 6 days of net active service during this period. He was assigned separation program number 246 (for the good of the service in lieu of trial by court-martial). His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate. 9. The applicant submitted an application to the Army Discharge Review Board (ADRB) requesting a review of his discharge. On 27 April 1978, the ADRB determined that, under the Department of Defense Discharge Review Program (Special), the reason for his discharge and his character of service were both proper and equitable. Accordingly, the ADRB denied the relief requested. 10. In support of his request the applicant provided a copy of a VA Cleveland Regional Office, Cleveland, OH, letter, dated 8 December 2015, that shows the VA granted him service connection at the 10-percent rate for pes planus (loss of the medial longitudinal arch of the foot, commonly referred to as flat foot). REFERENCES: 1. Army Regulation 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 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 under other than honorable conditions discharge is normally considered appropriate. b. Chapter 3, 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. Chapter 3, 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. 2. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant contends that his discharge under other than honorable conditions should be upgraded because he was discharged based on having flat feet and the VA has granted him service connection for this condition. 2. The available evidence does not show the applicant was discharged based on an unfitting medical condition of flat feet (pes planus). The fact that the VA granted him service connection for pes planus does not offer evidence that he was discharged from the Army based on an unfitting medical condition. 3. The evidence of record shows the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. The evidence of record shows the applicant received NJP on four occasions. The evidence of record also shows he was charged with committing an offense that was serious enough to warrant trial by court-martial. The applicant elected to request an administrative discharge in lieu of trial by court-martial. He was reduced to the rank of private/E-1 and he was issued an undesirable discharge. He did not complete his service obligation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001397 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001397 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2