IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150009782 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: 21 April 2016 DOCKET NUMBER: AR20150009782 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: 21 April 2016 DOCKET NUMBER: AR20150009782 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 his undesirable discharge be upgraded to a general discharge under honorable conditions. 2. The applicant states his reasons for his request for an upgrade are: a. His present discharge is excessive for the infraction. b. For humanitarian reasons to aid in his rehabilitation process. c. Emotional/mental duress caused by felony trial procedures he endured and he was found not guilty. d. Fear of retaliation if he was returned to his assigned post at Fort Bliss, TX. e. His absence didn't exceed 180 days. 3. He received a Department of Veterans Affairs (VA) publication on 28 November 2012 that informed him he could request a discharge upgrade. He has been incarcerated since 29 April 1976. 4. The applicant provides his DD Form 214 (Report of Separation from Active Duty) with an effective date of 29 July 1975. 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 30 January 1973, he enlisted in the Regular Army for 3 years. On 17 April 1974, he was assigned to Troop A, 1st Squadron, 3rd Armored Cavalry at Fort Bliss, TX. 3. He accepted nonjudicial punishment (NJP) on: * 6 August 1974 for failing to go at the time prescribed to his appointed place of duty * 22 January 1975 for failing to maintain a neat and well-groomed appearance 4. The applicant was absent without leave (AWOL) from his unit from 11 - 22 February 1975. 5. On 22 February 1975, he again went AWOL while pending charges for his previous period of AWOL. On 10 April 1975, he was apprehended by civil authorities at Decatur, IL and returned to military control. 6. On 1 May 1975, court-martial charges were preferred against the applicant for being AWOL: * from on or about 11 - 22 February 1975 * from on or about 27 February to on or about 10 April 1975 7. The applicant consulted with counsel and voluntarily requested discharge for the good of the service. He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request. He acknowledged he understood the elements of the offense he was charged with and he was: * guilty of the offense with which he was charged * making the request of his own free will * advised he may be furnished an Undesirable Discharge Certificate * advised he could submit statements in his own behalf 8. In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he: * would be deprived of many or all Army benefits * may be ineligible for many or all veteran's benefits * may be deprived of his rights and benefits as a veteran under both Federal and State laws 9. He submitted a statement with his request for discharge. He indicated: a. His reason for joining the Army was to flee from his parole officer and his parents so he could get married to his girlfriend (now his wife) who was pregnant at the time. b. He joined the Army knowing he was not one for military standards. He was doing fine until he was charged on suspicion of marijuana. His commander started showing his prejudice against him. He was put on driving the mess truck and kitchen patrol (KP) at the same time. c. He asked the sergeant in charge if he had to shave and he said no. The last day in the field his commander stopped his truck. He grabbed him and told him he was going to burn him. He did, and the applicant didn't appeal. d. At the time he didn't want the Army to be a part of his life. If he got discharged, he would be the happiest man in the world and he would react by going home and throwing a party. 10. On 7 May 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate. 11. On 29 July 1975, he was discharged and issued an Undesirable Discharge Certificate. He completed 2 years, 4 months and 1 day of net active service that was characterized as under other than honorable conditions. He had 58 days of time lost. 12. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 states 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 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. 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 he suffered emotional/mental duress caused by felony trial procedures and he was found not guilty. There is no evidence of record showing felony trial procedures with a finding of not guilty. He provided no substantive evidence to support his contention. 2. The applicant was charged with an offense punishable by a punitive discharge. He consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial. He acknowledged in his request for discharge that he could receive an under other than honorable conditions discharge and issued an undesirable discharge certificate. 3. He was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he: * would be deprived of many or all Army benefits * may be ineligible for many or all veteran's benefits * may be deprived of his rights and benefits as a veteran under both Federal and State laws 4. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. 5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10. There is no evidence of procedural or other errors that would have jeopardized his rights. 6. He was AWOL for 58 days. The fact that he was apprehended by the civil authorities shows his lack of intent to return to his unit. In his statement submitted with his request for discharge he indicated he didn't want the Army to be a part of his life. His service is determined to be unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009782 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009782 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2