BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160001923 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: 6 June 2017 DOCKET NUMBER: AR20160001923 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: 6 June 2017 DOCKET NUMBER: AR20160001923 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 his undesirable discharge. 2. The applicant makes no statement. 3. The applicant provides no additional evidence. 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 on 17 December 1970. 3. On 12 May 1972, court-martial charges were preferred against him for three specifications of being absent without leave (AWOL) from on or about: * 8 February to 14 March 1971 * 20 to 24 March 1971 * 14 April 1971 to 1 April 1972 4. His DA Form 20 (Enlisted Qualification Record) lists a period of AWOL from on or about 12 to 22 June 1972. His service records are void of the disposition for this period of AWOL. 5. On 12 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 Uniform Code of Military Justice, the possible effects of a bad conduct discharge or dishonorable discharge, and the procedures and rights that were available to him. 6. Subsequent to receiving legal counsel and without coercion, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He indicated he understood the above and no one had forced him to request a discharge. He elected to submit statements in his own behalf; however, his statements are not in the available records. 7. On 12 May 1972, his company commander recommended approval of his request with an undesirable discharge. The company commander stated his personal evaluation of the applicant revealed he would never be a satisfactory Soldier and retention would serve no useful purpose. 8. On 12 May 1972, his intermediate commander recommended approval of his request and stated the applicant's military record indicated that retention was neither practical nor desirable. 9. The separation authority's approval is not in the available records. 10. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 22 June 1972 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions (undesirable). He completed 4 months and 24 days of creditable active service with 402 days of lost time. 11. His service records do not indicate he applied to the Army Discharge Review Board for a review 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. Chapter 10 of this regulation 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. Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate. b. 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. 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. DISCUSSION: 1. His service records show court-martial charges were preferred against him for three specifications of being AWOL and he had a total of 402 days of lost time. 2. The evidence of record shows the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His service records do not indicate he made his request under coercion or duress. 3. A service characterization of under other than honorable conditions was normally considered appropriate for a Soldier discharged under the provisions of chapter 10. The evidence of record does not indicate the actions taken in his case were in error or unjust. It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general 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) AR20160001923 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001923 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2