IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150005561 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 undesirable discharge to honorable with 6 months of back pay. 2. The applicant states: a. He couldn't support his family because he did not receive his pay for 6 months. He was absent without leave (AWOL) to help with his family. He informed his commanding officer that he was going to take his family to his father's house in Oklahoma, but his commanding officer told him he couldn't do that. He did it anyway because his family was more important to him. This would not have happened if he had gotten his military pay. When he got his family to his father's house, his father helped take care of them. b. The military never got in contact with him after that. He only had 6 months left in the Army. He didn't know when to report to Fort Sill, so they sent the military police after him. c. He was told his discharge would be upgraded to honorable after 6 months and he would receive his back pay, but nothing ever happened. He tried to contact the Army via telephone and mail with no response. 3. The applicant provides: * four character-reference letters * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DA Form 20 (Enlisted Qualification Record) * DD Form 4 (Enlistment Contract – Armed Forces of the United States) 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 8 January 1970 for a period of 3 years. He completed his training and was awarded military occupational specialty 64C (motor transport operator). 3. In August 1971, nonjudicial punishment (NJP) was imposed against him for being AWOL from 8 August 1971 to 18 August 1971 and from 19 August 1971 to 20 August 1971. 4. He was AWOL again on 19 April 1972. He was apprehended by civil authorities on 7 August 1971 and returned to military control. On 9 August 1972, charges were preferred against him for the AWOL period. 5. On 15 August 1972 after consulting with counsel, he submitted a request for 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 indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected to submit a statement in his own behalf. In summary, he stated: * he requested a discharge under the provisions of chapter 10 * he completed 7 years of school * he did not have any civilian convictions * he completed his training and served 18 months in Okinawa * he had three NJPs under Article 15 * he was AWOL because of his family * his family couldn't live on the money he received in pay * he doesn't think he could ever adjust to the Army because of his problems * he had a bad attitude and low morale 6. On 31 August 1972, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of An Undesirable Discharge Certificate. 7. On 31 August 1972, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate. He completed 2 years, 3 months, and 6 days of total active service with 138 days of lost time. 8. His pay records are not available for review. 9. There is no evidence showing he did not receive his military pay. 10. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. He provided four character-reference letters from his sisters who attest: * he is a good person and a hard-working family man * he is a loving and caring person * he has heart problems * does not use drugs or drink * he is unable to work * he helps his family * he deserves Department of Veterans Affairs benefits 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 Veterans Administration 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 to an individual who was discharged for the good of the service. Chapter 10 of the version currently in effect is essentially unchanged. b. 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. c. 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. 13. The U.S. Army has never had a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he was informed that his discharge would automatically be upgraded to honorable after 6 months; however, a discharge upgrade is not automatic. Each case is decided on its own merits. 2. The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded. 3. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations. 4. The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case. 5. His record of service included at least one NJP (he admitted to three NJPs) and 138 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. 6. There is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge. 7. His request for 6 months of back pay was noted. However, in 1972, he indicated he was AWOL because his family could not live on his military pay. He now contends he was AWOL because he did not receive pay for 6 months and he could not support his family. There is no evidence and the applicant provided no evidence showing he did not receive pay for 6 months. There is insufficient evidence on which to base granting this request. 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 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) AR20150005561 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005561 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1