IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150010469 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: 19 April 2016 DOCKET NUMBER: AR20150010469 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: 19 April 2016 DOCKET NUMBER: AR20150010469 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. 2. The applicant states: * he understands that the Board will look at his entire record; however, sometimes there are more things than what the records shows * he was a young man, born in the South, raised in the North, and wasn't used to being called names (racial epithets) * he had a sergeant spit in his face and he felt less of a man * when he was in the Army, he received two rounds of shots before going overseas – he has had a rash ever since and now it is getting worse; the medication he gets to help with this rash is getting higher and higher * when he was discharged from the Army, a colonel said the first discharge to hit his desk would be his (the applicant's) 3. The applicant provides: * 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) 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 for a 3-year term on 31 January 1968. He completed basic combat training at Fort Leonard Wood, MO. 3. On 4 March 1968, he departed his training unit in an absent without leave (AWOL) status. He returned to military control on or about 16 April 1968. 4. On 5 June 1968, at Fort Riley, KS, he was convicted by a special court-martial of one specification of being AWOL from 4 March 1968 to 16 April 1968. The court sentenced him to confinement at hard labor for 3 months and a forfeiture of pay for 3 months. The convening authority approved his sentence on 5 June 1968. 5. On 11 July 1968, also at Fort Riley, he was again convicted by a special court-martial of one specification of committing an assault against another Soldier. The court sentenced him to confinement at hard labor for 6 months and a forfeiture of pay for 6 months. The convening authority approved his sentence on 15 July 1968. 6. On 17 March 1969, at Fort Carson, CO, he was convicted by a special court-martial of one specification of being AWOL from 25 July 1968 to 25 February 1969. The court sentenced him to confinement at hard labor for 6 months and a forfeiture of pay for 6 months. The convening authority approved his sentence on 26 March 1969. 7. On 10 November 1969, at Fort Campbell, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 9. On 30 December 1969, also at Fort Campbell, he again accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from a commissioned officer. 10. On 11 December 1970, at Fort Benning, GA, he was convicted by a special court-martial of one specification of being AWOL from 9 March to 15 November 1970. The court sentenced him to confinement at hard labor for 6 months and a forfeiture of pay for 6 months. The convening authority approved his sentence on 29 December 1970. 11. On 8 January 1971, he departed his unit in an AWOL status and he was immediately dropped from the rolls as a deserter. He ultimately returned to military control on 12 July 1971. 12. On 21 July 1971, court-martial charges were preferred against him for being AWOL from 8 January to 12 July 1971. 13. On 14 September 1971, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, 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 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged: * he was making this request on his own free will and he had not been subjected to any coercion whatsoever * he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate * he acknowledged he understood that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he acknowledged he understood he could expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf 14. His immediate and intermediate commanders recommended approval of the discharge action with the issuance of an undesirable discharge. The intermediate commander indicated the applicant had not been a satisfactory Soldier and his retention served no purpose. 15. On 4 October 1971, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial. He directed the applicant be reduced to the lowest enlisted grade, if applicable, and furnished an Undesirable Discharge Certificate. Accordingly, the applicant was discharged on 14 October 1971. 16. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by a court-martial with an Undesirable Discharge Certificate. He completed 10 months and 24 days of net active service this period with 756 days of lost time. 17. On 19 October 1977, he was advised that the Army Discharge Review Board had reviewed his discharge and denied his request for an upgrade. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that 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, an undesirable discharge is normally considered appropriate. 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. DISCUSSION: 1. The applicant 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. 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. 2. There is no evidence showing the applicant suffered from any medical issues during the referenced period. Likewise, there is no evidence of record and none was provided with this application to show he was diagnosed with an illness or any other medical condition that rendered him unable to reasonably perform the duties required of his former grade or military specialty or caused him to go AWOL or assault another Soldier. 3. The available evidence shows upon having court-martial charges preferred against him, he exercised his right to consult with counsel. His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge. He voluntarily chose the discharge. 4. Based on his record of indiscipline, which included multiple convictions by courts-martial, two instances of NJP, and an extensive history of AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory and does not rise to the level required for a general or an honorable 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) AR20150010469 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010469 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2