BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160004914 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: 10 October 2017 DOCKET NUMBER: AR20160004914 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: 10 October 2017 DOCKET NUMBER: AR20160004914 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, in effect, an upgrade of his characterization of service. 2. The applicant states he was told during basic training to make sure his dependents were listed in his records. He was married and he had kids from a previous relationship. A noncommissioned officer told him that he could not take care of his illegitimate kids. He was getting ready to be sent to war and he did not think it was right for the Army not to take care of his children. He was given an Article 15 for speaking up against the decision not to send support to his children. 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 19 May 1971. 3. On 17 March 1972, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 30 August 1971 to on or about 7 March 1972. 4. On 20 March 1972, the applicant met with counsel and he voluntarily requested discharge 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. He acknowledged that he had not been subject to coercion with respect to his request for discharge, and that counsel advised him of the implications attached to his requested discharge. a. He acknowledged understanding that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He understood that because of the issuance of such a discharge, he would be deprived of many or all Army benefits. b. He acknowledged understanding that he may 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 State and Federal law. He also understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority's consent. A statement in his behalf was not provided. 5. On 3 April 1972, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate. On 12 May 1972, he was discharged accordingly. 6. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 4 months and 11 days of creditable active service with 223 days of lost time. 7. His records contain no evidence and he provides no evidence that he was given an Article 15 for speaking up against the decision not to send support to his children. 8. In March 1975, the applicant applied to the Army Discharge Review Board (ADRB) to upgrade the characterization of his service to at least under honorable conditions (general). The applicant indicated he wanted to enroll in a job training program or some kind of junior college because he wanted to change his lifestyle. 9. On 12 May 1976, the ADRB informed the applicant by letter that they reviewed his discharge and determined he was properly discharged. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. This regulation 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. This regulation 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The record shows he voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in jail time and a bad conduct discharge. 2.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. There is no evidence of procedural errors that would have jeopardized his rights. The characterization of service he received was commensurate with the reason for his discharge. 3. 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. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004914 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004914 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2