IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010839 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: 2 June 2016 DOCKET NUMBER: AR20150010839 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: 2 June 2016 DOCKET NUMBER: AR20150010839 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 to an honorable discharge. He also requests a personal hearing before the Board. 2. The applicant states the upgrade is requested for three reasons: misrepresentation by a military lawyer, he was told his discharge would be honorable, and he did not have any other trouble during his military service. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). 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 16 March 1972. He completed the training requirements and he was awarded military occupational specialty 13A (Field Artillery-Basic). He served in Germany from 28 July 1972 to on or about 20 August 1973. 3. On 21 August 1973, he departed his unit in an absent without leave (AWOL) status and on 19 September 1973, he was dropped from Army rolls as a deserter. He was apprehended by military authorities at Fort Bragg, NC on 20 December 1973. 4. The complete facts and circumstances of the applicant's discharge processing are not available for review by the Board. However, his record contains: a. Special Orders (SO) Number 24, issued by Headquarters, XVIII Airborne Corps on 4 February 1974 reassigning him to the U.S. Army Separation Transfer Point for separation effective 6 February 1974. b. SO Number 25, issued by Headquarters, XVII Airborne Corps, on 5 February 1974 discharging him from active duty under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), effective 5 February 1974 with an under other than honorable conditions discharge. c. A DD Form 214 that shows he was discharged on 5 February 1974 under the provisions of chapter 10, Army Regulation 635-200, in lieu of a court-martial with an under other than honorable conditions characterization of service. He was issued an Undesirable Discharge Certificate. This form also shows he completed 1 year, 5 months, and 27 days of net active service and he had 143 days of lost time. 5. 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. REFERENCE: 1. 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 was considered appropriate at the time the applicant was discharged. 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. c. 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. 2. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant's record is void of the complete facts and circumstances that led to his discharge. However, his record contains separation orders and a DD Form 214 that shows he was discharged on 5 February 1974 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with an under other than honorable conditions discharge. 3. The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate the contrary. Further, it is presumed that the applicant's discharge accurately reflects his overall record of service. 4. The applicant does not provide the documentary evidence to corroborate his contention that he was misrepresented by a military lawyer or that he was told his discharge would be honorable. His service did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. There is insufficient evidence to upgrade his discharge to an honorable or a general 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) AR20150010839 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010839 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2