IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150007665 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 under other than honorable conditions discharge. 2. The applicant states he had a family issue at the time and he was near his discharge date. He did not exercise his rights to ensure a proper discharge. 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 inducted into the Army of the United States on 13 August 1970 and held a field artillery specialty. 3. On 3 January 1971, he departed his training unit in an absent without leave (AWOL) status but he returned on 14 January 1971. 4. On 18 January 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the above period of AWOL. 5. He served in Germany from 12 March 1971 to 5 April 1972. However, 3 days after his arrival in Germany, on 15 March 1971, he accepted NJP under the provisions of Article 15 of the UCMJ for being drunk and disorderly in public. 6. On 24 November 1971, following an Article 32 hearing, court-martial charges were preferred against him for: * three specifications of behaving disrespectful towards commissioned officers * one specification of resisting lawfully apprehension by military police * three specifications of assaulting three different commissioned officers 7. On 15 February 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable 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. 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 acknowledged: * he understood by requesting discharge he was admitting guilt to the charges against him or to 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 could receive an Undesirable Discharge Certificate, and 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, 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 indicated he did not desire to submit a personal statement 8. His immediate commander recommended disapproval of the discharge action and trial by a general court-martial. His battalion and senior commanders both concurred with the trial by a general court-martial. 9. On 28 March 1972, following a legal review for legal sufficiency 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 directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. On 5 April 1972, the applicant was accordingly discharged. 10. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged on 5 April 1972 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, 7 months, and 8 days of creditable active service during this period and he had 15 days of time lost. 11. On 29 April 1981, the Army Discharge Review Board (ADRB) reviewed his discharge and after consideration of the evidence, the ADRB concluded he was properly discharged. Accordingly, the ADRB denied his request for an upgrade. 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 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. b. Paragraph 3-7a states 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 states 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's records show he was charged with the commission of an offense 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. 2. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 3. It is noted that the applicant did in fact exercise his rights; he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Only after doing so did he submit his voluntary request for discharge. 4. Based on his record of indiscipline, which included one instance of AWOL, two instances of NJP, and court-martial charges, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. 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) AR20150007665 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007665 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1