IN THE CASE OF: YBARRA, RAUL A. BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150013771 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: YBARRA, RAUL A. BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150013771 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: 18 October 2016 DOCKET NUMBER: AR20150013771 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 character of service from under other than honorable conditions to honorable and a personal appearance hearing in Austin, TX. 2. He states he needs a better discharge for benefits. 3. He 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 requests an upgrade of his character of service using a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and personal appearance before a traveling panel in Austin, TX. Although the ABCMR accepts the DD Form 293, this form is primarily used by the Army Discharge and Review Board (ADRB). The ABCMR does not have a traveling panel and his time to request a traveling panel through the ADRB has expired since their regulation requires an application to be submitted to their board within 15 years from the date of discharge. Therefore, his requests for appearance before a traveling panel will not be discussed any further in these Proceedings. 3. On 18 August 1969, the applicant was inducted into the Army of the United States. 4. His disciplinary history shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following occasions: * 13 April 1970 for failing to go at the time prescribed to his appointed place of duty on or about 10 April 1970 * 7 May 1970 for sleeping at his assigned post on or about 6 May 1970 * 8 August 1970 for willfully disobeying a lawful order from a superior warrant officer and being disrespectful in language to that officer * 17 August 1970 for being absent from his place of duty on or about 1330 hours, 14 August 1970 and remaining absent to on or about 1630 hours on 14 August 1970 5. On 27 May 1976, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 11 January 1971 to on or about 12 May 1976. 6. On 26 May 1976, he consulted with counsel and he voluntarily 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. a. In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him. b. He acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits. He also acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life. He elected not to submit a statement in his behalf. 7. On 14 June 1976, his commander recommended approval of the applicant's request and the issuance of an Undesirable Discharge Certificate. The Commander states the applicant was AWOL for 1,948 days and was returned to military custody after his apprehension by federal authorities. 8. On 16 June 1976, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and the applicant's reduction to private E-1. 9. On 23 June 1976, he was discharged accordingly. His DD Form 214 shows he received an under other than honorable conditions character of service. It also shows he completed 1 year, 6 months, and 5 days of net active service during this period with 1,949 days listed as time lost. 10. There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood that he could receive service characterized as under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished an individual who was discharged for the good of the service. b. An honorable discharge is given when the quality of the Soldier’s service has generally met the standards of acceptable conduct and duty performance. c. 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 states, in effect, the Board should upgrade his discharge so that he can receive benefits. There are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' or other benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances, which warrant the upgrade. 2. The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. The records further show he admitted he was guilty of being AWOL from 11 January 1971 to 12 May 1976. The record further shows the applicant voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial. 3. The applicant's record of service included four NJPs and 1,949 days of lost time. Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. In accordance with Army Regulation 635-200, his service does not meet the criteria 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) AR20150013771 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013771 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2