BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160002318 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: 27 July 2017 DOCKET NUMBER: AR20160002318 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: 27 July 2017 DOCKET NUMBER: AR20160002318 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 states: a. He was a young Hispanic boy from small town Texas. He did not know anything, but he wanted to serve his country. He wishes he had made better decisions. He volunteered a month after his 17th birthday. He was a scared kid who thought if he went into battle he might die, but he was willing. b. He got into a fight. He was assaulted and he felt he was defending himself. He was told he would get a general discharge. He doesn’t need health benefits because God has blessed him with good health. c. If he could do everything over today, he would do it differently. He is still proud to have taken part in the military. 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 born on 8 February 1954. At age 17, he enlisted in the Regular Army on 16 March 1971 for a period of 3 years. He completed his training and was awarded military occupational specialty 31M (radio relay and carrier attendant). 3. On 19 April 1971, nonjudicial punishment (NJP) was imposed against him for leaving his appointed place of duty without authority. 4. On 23 September 1971, NJP was imposed against him for assault (two specifications). 5. On 4 February 1972, he was convicted by a special court-martial of possessing marijuana. He was sentenced to hard labor for 3 months, forfeiture of $192.00 pay per month for 3 months, and reduction to E-1. On 2 March 1972, the convening authority approved the sentence, but suspended forfeiture of $92.00 for 3 months and suspended 2 months of hard labor for 6 months. 6. On 24 July 1972, the following charges were preferred against the applicant and trial by special court-martial was recommended: * participating in a breach of peace * assaulting a private by striking him on the chin with a means likely to produce grievous bodily harm, to wit, a broken wine bottle 7. After consulting with counsel, he submitted a request for 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 indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected to submit a statement in his own behalf. In summary, he stated: * he wanted to be discharged because he has had great difficulty in adjusting to the Army way of life * he had one special court-martial conviction and 3 NJPs * he had not been working in his military occupational specialty and all his requests had been denied * he thought he could do better in civilian life 8. On 22 August 1972, the separation authority approved his voluntary request for discharge and directed the issuance of an Undesirable Discharge Certificate. 9. On 25 August 1972, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed a total of 1 year, 5 months and 104 days of creditable active service. His service was characterized as under other than honorable conditions. 10. There is no indication he 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. 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 to an individual who was discharged for the good of the service. 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. Although the applicant was 17 years of age when he enlisted, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. 3. His record of service included two NJPs, one special court-martial conviction for possessing marijuana, and serious offenses for which special court-martial charges were preferred against him. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002318 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002318 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2