BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160001933 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: 8 August 2017 DOCKET NUMBER: AR20160001933 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: 8 August 2017 DOCKET NUMBER: AR20160001933 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 (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states he joined the military during the Vietnam era. After initial entry training (IET), he received assignment orders to Vietnam. He was undergoing significant difficulties in his life at that time. a. Right before he joined the service, he was stabbed in the liver, requiring surgical repair. He was suffering medical repercussions caused by that incident. b. He had family members who were killed in Vietnam. He also had numerous problems at home, including his girlfriend at the time being pregnant. He regrettably decided to go absent without leave (AWOL). He returned and was administratively separated. c. Since his regrettable decision to go AWOL, he had become a contributing member of society and a regular participant in community service. He sat on the Board of Directors for his church in 1993. He wishes to correct this injustice. 3. The applicant provides no additional evidence in support of his request. 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 16 February 1971 at 17 years of age. He completed IET and was awarded military occupational specialty 12F (Combat Engineer – Track Vehicle). He departed IET on or about 19 June 1971, in order to be assigned to Fort Hood, TX; however, he did not report to Fort Hood. Instead, he was reported AWOL, effective 2 July 1971, and was dropped from the rolls (DFR) of the Army on 1 August 1971. 3. A DD Form 458 (Charge Sheet), dated 20 April 1972, shows court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ), specifically for being AWOL from on or about 2 July 1971 through on or about 17 April 1972. 4. The applicant consulted with counsel on 8 May 1972 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 undesirable discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 5. In the applicant's request for discharge, he indicated he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He declined to make a statement in his behalf. 6. On 23 May 1972, the separation authority informed the applicant he was considering his request for discharge for the good of the service; however, disciplinary proceedings on the court-martial charges pending against him would not be held in abeyance pending a decision on his request for discharge. 7. The applicant was convicted by special court-martial on 30 June 1972 at Fort Belvoir, VA, of violating Article 86 of the UCMJ. Specifically, he was convicted of being AWOL from on or about 2 July 1971 through on or about 17 April 1972. He was sentenced to confinement at hard labor for three months, and the forfeiture of $75.00 pay per month for three months. 8. The applicant was confined from 30 June 1972 through 3 July 1972, in accordance with the sentence in his special court-martial trial. The applicant was notified on 3 July 1972 that since his court-martial conviction did not result in the imposition of a punitive discharge as a part of the sentence that he had the right to withdraw his request for discharge. However, after consulting with his attorney, he decided not to withdraw his request for discharge for the good of the service. The attorney noted the applicant was informed he would receive an Undesirable Discharge Certificate if he proceeded and that the applicant was fully aware of his rights. 9. The applicant's special court-martial conviction was approved on 20 July 1972, and the separation authority approved his request for separation on the same day. The separation authority directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10, and that he be issued an Undesirable Discharge Certificate. 10. The applicant was discharged on 31 July 1972. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his character of service was UOTHC. 11. The Army Discharge Review Board denied his request for an upgrade of his discharge on 6 December 1972. REFERENCES: Army Regulation 635-200 sets 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. c. 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, 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 Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service. DISCUSSION: 1. The applicant enlisted in the Regular Army at 17 years of age. After completing IET, he went AWOL. At the age of 18, upon his return to military control, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected to be discharged under the provisions of Army Regulation 635-200, chapter 10. 2. The separation authority proceeded with a trial by special court-martial and the applicant was found guilty of the AWOL offense; however, a punitive discharge was not included with the sentence. The applicant was released early from his sentence of confinement with hard labor and notified he could withdraw his request for discharge; however, he did not withdraw the request, and he was discharged accordingly. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for the good of the service. 4. His voluntary request for discharge for the good of the service was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. The characterization of service he received was commensurate with the reason for his discharge. 5. The applicant's post-service conduct is noted; however, post-service conduct alone is not normally a basis for upgrading a 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) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001933 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2