IN THE CASE OF: BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160005413 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 IN THE CASE OF: BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160005413 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. IN THE CASE OF: BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160005413 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 discharge under other than honorable conditions to general discharge. 2. The applicant states: a. He had no intention of this happening when he enlisted in the Army. He could have gone to Canada if he didn't want to be in the Army, but he was looking for a career. b. His father worked for R. T. French and Company (French's Mustard) for many years. After he joined the Army, his father lost his job when the company moved out of Rochester, NY. His father received a pension and was initially diagnosed with tuberculosis, then later diagnosed with black lung disease from grinding mustard seeds. c. During advanced individual training at Fort Lee, VA, he requested a hardship discharge to help take care of his family. He never received an answer, so he took matters into his own hands. He couldn't let his parents starve or live on the street. d. Every time he was absent without leave (AWOL), he went home to take care of his family. His mother wrote to a Congressman to solicit support for his immediate discharge. e. So many years have passed and he has since lost both parents, a sister, and three brothers, so he has no supporting documentation. He is aware of the fire at the National Personnel Records Center in 1973 and does not know whether his records were damaged or destroyed. He remembers providing supporting documents at the time. f. His fiancée was also pregnant at the time, which meant he had two families to support. He knows everyone has problems and excuses, but he is very sorry for what he did. g. If he had known he could have reenlisted at a later time with a waiver, he would have joined the National Guard. He didn't know he could enlist with a waiver until he talked to a Department of Veterans Affairs (VA) representative years later. 3. The applicant provides: * Insley McEntee Equipment Company, Incorporated, character-reference letter, dated 16 December 1998 * VA Form 21-4138 (Statement in Support of Claim), dated 1 February 2016 * Prince George's County Government character-reference letter, dated 3 February 2015 * character-reference letter from his former spouse, dated 4 February 2016 * character-reference letter from a friend, undated 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 30 March 1970. 3. A DD Form 458 (Charge Sheet), dated 2 June 1971, shows court-martial charges were preferred against him for four specifications of being AWOL from on or about: * 30 June 1970 to 18 November 1970 * 7 to 10 December 1970 * 21 December 1970 to 26 February 1971 * 8 March 1971 to 2 June 1971 4. On 17 June 1971, 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. He was afforded the opportunity to consult with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, and the possible effects of an undesirable discharge. He understood he would normally be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He acknowledged 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 understood he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. 5. He submitted a statement on his own behalf wherein he stated he knew he had made a mistake after he enlisted. He thought it would be in the best interest of the Army to discharge him. He could not accept such big responsibility, he wanted to be at home with his family. He didn't really care what type of discharge he received as long as he got out of the Army. 6. On 18 June 1971, the applicant's commander recommended approval of his request with the issuance of an Undesirable Discharge Certificate. His commander stated the applicant had no motivation for continued service and he would not respond to counseling or rehabilitation. He had 298 days of bad (lost) time and was currently confined pending court-martial charges. He had been medically examined and found qualified for separation. 7. On 6 July 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Undesirable Discharge Certificate. 8. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, with a discharge under conditions other than honorable, effective 29 July 1971. He completed 6 months and 8 days of active service and accrued approximately 298 days of lost time. 9. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 10. He provided four letters of support from his former employers, a friend, and his former spouse. All four attest to his upstanding character, excellent work ethics, and dedication to his immediate family. 11. He also provided a VA Form 21-4138, dated 1 February 2016, wherein he stated: a. He married his pregnant fiancée and moved in with his parents to provide financial support before his discharge. b. He worked with carpenters and roofers for cash and gave half of his wages to his parents. c. His newborn daughter and wife moved out of his parents' home after his father retired while he continued to provide financial support to his parents. d. His mother was killed by a drunk driver in 1981; then his father moved in with his family. His father passed away in 1992. e. He raised three wonderful children, two girls and one boy, with his first wife of 25 years. They mutually separated once the children had moved out of their house. f. He met his second wife and moved to Maryland. They were together for 17 years, raising her two children before their separation. They still remain friends and communicate daily. g. He currently lives in a trailer in upstate New York to be near his children. He has been a law-abiding citizen and never has been in trouble. He has worked hard every day over the years to support his family. h. He loves this country and he would be willing and able if he were called upon to defend the United States of America. i. He has grown wiser with age. He cannot change the past, but he is hopeful for favorable consideration for an upgrade of his discharge. REFERENCES: 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. b. 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. His records show he was AWOL on four occasions and accrued approximately 298 days of lost time. These are offenses punishable under the Uniform Code of Military Justice and could have resulted in a punitive discharge. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge from the Army to avoid trial by court-martial. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process. 3. His DD Form 214 shows he was discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10. His service was characterized as under conditions other than honorable, which was commensurate with the reason for his 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) AR20160005413 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005413 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2