BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160001929 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: 9 May 2017 DOCKET NUMBER: AR20160001929 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: 9 May 2017 DOCKET NUMBER: AR20160001929 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 character of service from undesirable to general under honorable conditions. 2. The applicant states he was stationed at Fort Hood, TX. When his mother became ill he tried to take leave, but he was told he could not because he had just arrived at Fort Hood. He became upset and went absent without leave (AWOL) to see his mother. 3. The applicant provides no additional documents. 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 5 January 1967 and he was assigned to Korea on 20 February 1968. While in Korea, he was honorably discharged on 26 December 1968 for immediate reenlistment on the following day. 3. He reenlisted on 27 December 1968 and he was promoted to specialist five (SP5)/E-5 on 15 April 1969. 4. On 21 July 1969, he departed Korea and he was reassigned to Company A, 142nd Signal Battalion, 2nd Armored Division, Fort Hood, TX on 27 August 1969. 5. On 22 January 1970, he was convicted by a special court-martial of three specifications of being AWOL from on or about 12 September to 16 November 1969; from 19 to 26 November 1969; and from 6 to 23 December 1969. He was sentenced to a forfeiture of $70.00 pay for 2 months, reduction to private first class, extra duty for 2 hours a day for 2 months, and restriction to the unit area for 2 months. 6. On 21 September 1970, he was convicted by a special court-martial of two specifications of being AWOL from on or about 5 February to 7 May 1970 and from 9 June to 30 August 1970. He was sentenced to confinement at hard labor for 4 months and to be discharged with a bad conduct discharge. The Court of Military Review findings are not available. 7. On 11 August 1971, court-martial charges were preferred against the applicant for being AWOL from on or about 23 November 1970 to 28 July 1971. 8. On 10 August 1971, 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. 9. Subsequent to receiving legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel), chapter 10, for the good of the service. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He submitted statements in his own behalf and indicated that he: * enlisted on 5 January 1967 for 3 years and reenlisted on 26 December 1968 for 3 years * had 38 months of good time and 18 months of bad time * was pending charges for 7 months of being AWOL from Fort Hood * had two special courts-martial, one for three counts of AWOL totaling about 6 months and one for 2 months of AWOL * requested a discharge because he could not cope with military life any longer 10. On 31 August 1971, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with the issuance of an Undesirable Discharge Certificate and reduction to private/E-1. 11. The Army discharged him on 3 September 1971 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions (undesirable) character of service. He completed 1 year, 1 month, and 8 days of creditable active service during the period under review and he had 1 year, 11 months, and 6 days of prior active service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) lists his periods of lost time as 12 September to 15 November 1969, 19 to 25 November 1969, 6 to 22 December 1969, 5 February to 6 May 1970, 1 June to 29 August 1970, 21 September to 9 November 1970, 23 November 1970 to 27 July 1971, and 10 August to 3 September 1971. 12. His service record does not indicate he applied to the Army Discharge Review Board 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 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 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 charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. b. Paragraph 1-9 states 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. 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 record does not indicate that he made his request under coercion or duress. 2. The evidence of record shows the applicant received an honorable discharge during his prior period of service from 5 January 1967 to 26 December 1968. However, his service record shows he received two convictions by a special court-martial and court-martial charges for being AWOL from on or about 23 November 1970 to 28 July 1971 during the period under review. 3. The applicant's states he went AWOL because his mother was ill and he was not allowed to take leave to visit her. However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge. 4. An under other than honorable conditions character of service was normally appropriate for a Soldier discharged under chapter 10. The evidence of record does not indicate the actions taken in his case were in error or unjust. The separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant 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) AR20160001929 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001929 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2