BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160001743 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: 29 August 2017 DOCKET NUMBER: AR20160001743 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: 29 August 2017 DOCKET NUMBER: AR20160001743 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 under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect, he was a young man when he joined and did not fully understand his options at the time. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), for the period ending 2 October 1975. 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 21 May 1974. 3. On 26 February 1975, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful possession of marijuana on or about 13 February 1975. 4. A DD Form 458 (Charge Sheet), dated 15 September 1975, shows court-martial charges were preferred against the applicant for violating Article 86 of the UCMJ; specifically, for being absent without leave (AWOL) from on or about 17 June 1975 through on or about 9 September 1975. 5. The applicant consulted with legal counsel on 17 September 1975 and 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 under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. a. In the applicant's request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. b. He acknowledged he had been advised of the possible effect of an under other than honorable conditions character of service and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. c. He declined to make a statement in his behalf. 6. The separation authority approved the applicant's request for discharge on 29 September 1975 and directed the issuance of an Undesirable Discharge Certificate. 7. The applicant was discharged accordingly on 2 October 1975. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his service was characterized as under other than honorable conditions. Item 27 (Remarks) shows he had 91 days of lost time under the provisions of Title 10, U.S. Code, section 972. 8. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge 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. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service 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. Consulting counsel would advise the member concerning the elements of the offense or offenses, 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. An under other than honorable conditions discharge was normally considered appropriate. DISCUSSION: 1. The Board carefully considered the applicant's request for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge. He contends he did not understand the options available to him at the time. 2. The applicant's record of indiscipline during his brief period of service includes NJP for wrongful possession marijuana and court-martial charges for 85 days of AWOL (17 June through 9 September 1975). The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. 3. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10, in order to avoid trial by court-martial. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. 4. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable laws and regulations. All requirements of law and regulation were met and his rights were fully protected. There is no indication the request was made under coercion or duress. Based on his record, the separation authority determined his overall record of service did not rise to the level required for either an under honorable conditions (general) discharge or an honorable discharge. 5. 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. 6. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001743 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001743 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2