BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160001598 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: 25 May 2017 DOCKET NUMBER: AR20160001598 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: 25 May 2017 DOCKET NUMBER: AR20160001598 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 correction of his military records by upgrading his general, under honorable conditions discharge (GD) to an honorable discharge (HD). 2. The applicant states that when he returned late from leave his lieutenant ordered him to report to a major at the military police headquarters. He was placed in handcuffs and transported to Fort Stewart, Georgia, where he was placed in the stockade for 5 or 6 weeks. His case was heard by the Adjutant General and he received non-judicial punishment (NJP) that included a reduction in rank. Most of his bad time was the result of being in the stockade. He did not know until 20 November 2015 that he could appeal his discharge. 3. The applicant provides: * Letter of Appreciation, dated 16 November 1971 with chain of command endorsements (3 pages) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) (Member copy Number 1) 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 7 May 1970 the applicant was inducted into the Army of the United States. 3. On 18 May 1970, the applicant was enrolled in the basic combat training course at Fort Jackson, South Carolina. He successfully completed this training and was assigned to the advanced individual training (AIT) course for training as a light vehicle driver. 4. On 31 July 1970 the applicant accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from 21 to 23 July 1970. 5. On or about 21 August 1970, the applicant completed his AIT training. He was assigned on 4 September 1970 to Fort McPherson, Georgia, as a light vehicle driver. 6. On 23 April 1971 the applicant was placed in a casual status for assignment to the Federal Republic of Germany. 7. On 6 June 1971 the U.S. Army Overseas Replacement Station placed the applicant in an AWOL status. On 24 June 1971 he was dropped from the rolls of the Army as a deserter. 8. On 13 July 1971 the applicant returned to military control and was placed in the Personnel Confinement Facility at Fort Gordon, Georgia 9. On 28 July 1971, the applicant accepted NJP for being AWOL from on or about 6 June to 13 July 1971. 10. On 13 July 1971 the applicant was assigned as a duty Soldier at Fort Gordon, Georgia. 11. On 23 September 1971 the applicant was placed in a casual status enroute to Fort McPherson, Georgia. On 24 September 1971 he was assigned as a truck master. 12. The discharge packet is missing from the applicant’s military records. However, his DD Form 214 shows that he received an early release from active duty (REFRAD) on 11 January 1972, under the provisions of Army Regulation 600-200 (Personnel Separations – Enlisted Personnel), paragraph 5-3, due to Secretarial Authority. His service was characterized as under honorable conditions (general). He completed 1 year, 6 months and 17 days of creditable active duty service with 48 days of lost time due to AWOL and confinement. He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). 13. Letter Orders Number 04-1083461, Reserve Components Personnel and Administration Center, dated 28 April 1976, announced the applicant’s discharge from the USAR effective 1 May 1976 with a GD. 14. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 15. The letter of appreciation provided by the applicant demonstrated that the applicant was professional in the way he performed his duties as a driver. His military appearance and tactful manner while assisting senior officers evoked many laudatory comments. REFERENCES: 1. Army Regulation 635-200, as in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 5-3 provides that separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily it is used when no other provision of this regulation applies and early separation is clearly in the best interests of the Army. Separation under this paragraph is effective only if approved in writing by the Secretary of the Army or his approved designee as announced in updated memorandums. 2. Army Regulation 15-185 (ABCMR) provides that the Board 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 applicant successfully completed his training and it appears he could perform his duties to standard in a respectful and courteous manner. The available evidence also shows the applicant twice received NJP for periods of AWOL, with one of these absences resulting from his missing movement to an overseas assignment. Being AWOL is a violation of the Uniform Code of Military Justice and one’s absence from his appointed place of duty is normally not considered an acceptable standard of behavior for Soldiers. 2. Although the applicant’s discharge package is unavailable, it appears that the commander exercised his authority by requesting the Secretary of the Army’s approval to release the applicant from active duty prior to his expiration of his term of service. There is no evidence showing his right to due process was violated. 3. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. With 48 days of lost time due to AWOL and confinement, the characterization of his service is 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) AR20160001598 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001598 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2