BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160018108 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: 15 August 2017 DOCKET NUMBER: AR20160018108 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: 15 August 2017 DOCKET NUMBER: AR20160018108 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 correction of his military records by showing his undesirable characterization of service was upgraded to general, under honorable conditions. 2. The applicant states he did not want this discharge but the officer in charge at Fort Riley, Kansas, did not care what he wanted. Neither did the Army. 3. The applicant provides no additional documentation. 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. On 1 December 1966, the applicant enlisted in the Regular Army. He was trained as a field artilleryman. 3. On 22 June 1967, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the prescribed time. 4. On 2 October 1967, the applicant accepted NJP for being absent without leave (AWOL) from 30 September to 1 October 1967. 5. On 12 January 1968, the applicant was convicted at a special court-martial for being AWOL on 24 December 1967 and breaking restriction on 31 December 1967 and 1 January 1968. His sentence included a forfeiture and hard labor for 1 month. 6. On 30 March 1968, the applicant was convicted at a special court-martial for being AWOL on 16 March 1968. His sentence included a forfeiture and confinement at hard labor for 1 month. 7. On 9 October 1968, the applicant was convicted at a special court-martial for being AWOL from 16 July to 5 August 1968; and from 17 August to 19 September 1968. His sentence included a forfeiture and confinement at hard labor for 6 months. 8. On 23 April 1969, the applicant was convicted at a special court-martial for being AWOL from on or about 4 January 1969 to 25 March 1969. His sentence included a forfeiture and confinement at hard labor for 6 months. 9. On 9 June 1969, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212. The commander stated that the reason for this recommendation was due to the applicant’s repeated and lengthy periods of AWOL and multiple courts-martial. Interviews with the applicant and a search of his records indicated that the best interest of the service would be met by elimination due to unfitness. A medical evaluation showed the applicant met retention standards. 10. The applicant consulted with counsel and elected to waive consideration of his case by a board of officers, or to appear before such a board. He elected to not submit a statement in his own behalf and waived representation. Counsel advised the applicant of the basis for his contemplated separation and its effect and the rights available to him. 11. On 10 June 1969, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and be issued a DD Form 258A (Undesirable Discharge Certificate). At the time, the applicant was serving a sentence to confinement at hard labor with an expected date of release of 22 October 1969. 12. On 27 June 1969, the applicant was discharged under conditions other than honorable. 13. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge (i.e., discharge under conditions other than honorable) was normally considered appropriate. 2. Army Regulation 635-200 (Personnel Separations): 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION: 1. The applicant contends that his military records should be corrected by showing his undesirable characterization of service was upgraded to general, under honorable conditions because he did not want this type of discharge, but the officer in charge and the U.S. Army did not care about what he wanted. 2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The characterization of service he received 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) AR20160000882 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018108 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2