BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003941 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: 26 September 2017 DOCKET NUMBER: AR20160003941 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: 26 September 2017 DOCKET NUMBER: AR20160003941 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 under other than honorable conditions discharge. 2. The applicant states he got hooked on drugs while stationed at Fort Dix, NJ. He went absent without leave (AWOL) for 58 days before he turned himself in. He felt like a number; he was just shuffled out; and he was not even offered a court-martial or anything. He has been embarrassed all these years. His previous discharge was honorable. 3. The applicant provides * DD Form 214 (Report of Separation from Active Duty), for the period ending 10 May 1974 * DD Form 214, for the period ending 22 September 1977 * DD Form 214, for the period ending 1 November 1978 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. After prior service in the Army National Guard, the applicant enlisted in the Regular Army on 18 March 1975. He was honorably discharged on 22 September 1977 for the purpose of immediate reenlistment. He reenlisted in the Regular Army on 23 September 1977 for a period of six years. 3. The applicant accepted nonjudicial punishment (NJP) on 8 February 1978, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty. 4. The applicant was reported by his unit as AWOL on 7 April 1978. He remained AWOL until he was returned to military control on 18 May 1978. He was again reported as AWOL on 18 May 1978; he remained AWOL until he was returned to military control on 23 August 1978. 5. Court-martial charges were preferred against the applicant on 12 September 1978, based on his AWOL offenses. 6. The applicant consulted with legal counsel on 12 September 1978 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 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, for the good of the service – in lieu of trial by court-martial, due to charges preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge. 7. In connection with his request, he indicated he was making the request of his own free will and that he had not been subjected to any coercion whatsoever by any person. He acknowledged he understood the elements of the offenses charged and that he was guilty of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharged. He was advised of: * the nature of his rights under the UCMJ * the elements of the offense with which he was charged * the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty * the maximum permissible punishment if found guilty 8. He also acknowledged he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge. 9. The separation authority approved his request for discharge on 2 October 1978 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 10. The applicant was discharged on 1 November 1978. His DD Form 214 confirms his service was characterized as under other than honorable conditions. His DD Form 214 further confirms he accrued 164 days of lost time. 11. There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 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 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The available evidence shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. By requesting discharge, he admitted he was guilty of at least one of the charges against him that authorized the imposition of a bad conduct or dishonorable discharge. 2. The evidence further shows his 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. There is no indication the request was made under coercion or duress. 3. His record of indiscipline includes NJP for failing to go to his appointed place of duty, court-martial charges for being AWOL, and 164 days of lost time. The separation authority determined his overall record of service did not support the issuance of an honorable or general discharge at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003941 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003941 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2