IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150004573 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 to at least a general discharge. 2. The applicant states he was a young kid at the time and was caught with a small amount of marijuana. He was stationed at Fort Bragg, and this incident happened in 1973. It has been hanging over his head since 1974. 3. The applicant does not provide any 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 in October 1955 and he enlisted in the Regular Army at 17 years and 2 months of age on 30 November 1972. He completed training and was awarded military occupational specialty 52A (Powerman). 3. On 28 March 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a vehicle without a driver's license. 4. On 9 July 1973, he departed his unit in an absent without leave (AWOL) status and he returned to military control on 13 July 1973. On 18 July 1973, he accepted NJP for this offense. His punishment included forfeiture of pay, reduction to E-1 and extra duty. 5. On 17 August 1973, he again accepted NJP for AWOL from his appointed place of duty from 7 August 1973 to 15 August 1973. 6. On 17 September 1973, he accepted NJP for dereliction in the performance of his duties while on duty as the barracks orderly. 7. On 10 October 1973, he departed his unit in an AWOL status and he returned to his unit on 24 October 1973. 8. On 25 October 1973, court-martial charges were preferred against him for one specification of AWOL from 10 to 24 October 1973. 9. On 8 November 1973, additional court-martial charges were preferred against him for one specification of wrongfully possessing 66.42 grams more or less of marijuana. 10. He appears to have consulted with legal counsel and he would have been advised of the basis for the contemplated trial by court-martial for offenses punishable with a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. It also appears following consultation with legal counsel, he requested discharge under the provisions chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial. In his request for discharge, he would have acknowledged: * he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge * he was making this request of his own free will and he had not been subjected to any coercion * he had been advised of the implications that were attached to his request * he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could 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 Federal and State laws * he would have indicated if he desired to submit a personal statement 11. On 11 December 1973, his immediate commander recommended an undesirable discharge and stated the applicant had numerous instances of AWOL and he was an admitted drug user. Numerous counseling and discussions with him failed to produce any results. He had a totally negative attitude and he was a negative influence on other members of the command. 12. On 12 December 1973, his intermediate commander also recommended approval with the issuance of an undesirable discharge. 13. On 13 December 1973, his senior commander also recommended approval. This senior commander stated he personally interviewed the applicant and the applicant was aware of the consequences of his actions and decisions. He stated that his AWOL was caused by his inability to adapt to the military service and stated he would continue to go AWOL. He wanted to sever all ties with the military in lieu of facing court-martial charges. 14. On 27 December 1973, following a legal review and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and issuance of an Undesirable Discharge Certificate. On 17 January 1974, the applicant was accordingly discharged. 15. The DD Form 214 (Report of Separation and Record of Service) he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an under other than honorable conditions character of service and he was issued an Undesirable Discharge Certificate. This form further confirms he completed a total of 1 year and 21 days of creditable active service during this period and he had 27 days of time lost. 16. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 an individual who was discharged for the good of the Service. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He appears to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were presumably met, and his rights were fully protected throughout the separation process. Further, the applicant’s discharge appears to accurately reflect his overall record of service. 2. It is noted that the applicant was 17 years and 2 months of age when he enlisted. However, his discharge does not appear to be a result of his age. His senior commander personally interviewed him and he (the applicant) indicated his periods of AWOL were caused by his inability to adapt to military service. He also stated he would continue to go AWOL and wanted to sever all ties with the military. In any case, there is no evidence in his records and he provides none to show he was any less mature than other Soldiers of the same age who successfully completed their service. 3. Based on his record of indiscipline, which included four instances of accepting NJP based on multiple periods of AWOL and minor disciplinary infractions, and possession of illegal drugs for which he was charged, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory and does not meet the requirements for an honorable or a general discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150004573 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004573 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1