BOARD DATE: 17 November 2016 DOCKET NUMBER: AR20150013865 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 BOARD DATE: 17 November 2016 DOCKET NUMBER: AR20150013865 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. BOARD DATE: 17 November 2016 DOCKET NUMBER: AR20150013865 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 to an honorable discharge. 2. The applicant states: a. He received an under other than honorable conditions discharge by reason of insufficient retainability; it was a voluntary discharge. He went absent without leave (AWOL) because they would not give him an overseas tour that they had given everyone else. He was not court-martialed; he was told that he could stay in the service but he had to go back through basic combat training (BCT) and start all over again. b. He did not want to start all over so they told him that he would receive an under other than honorable conditions discharge and if he held down a steady job for 6 months or better that he could apply for a upgrade to an honorable discharge. After he was discharged, he held the same job for 5 years. He would really appreciate an upgrade of his status. 3. The applicant provides no 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 enlisted in the Regular Army on 12 November 1974. He completed BCT and on 31 January 1975 he was assigned for advanced individual training (AIT) in military occupational specialty (MOS) 05F (Teletype Operator, Non-Morse Code) to the 2nd Training Battalion (BN), School Brigade, U.S. Army Signal School, Fort Gordon, GA. 3. On 4 March 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from his assigned unit from 13 to 25 February 1975 (13 days). He did not complete AIT in MOS 05F. 4. On 30 March 1975, he was assigned for AIT in MOS 94B (Cook) to the 2nd BN, U.S. Army Quartermaster Brigade, Fort Lee, VA. 5. On 27 May 1975, he received NJP under the provisions of Article 15, UCMJ for: * being drunk and disorderly in the company area * failing to obey a lawful order from a commissioned officer 6. On 30 May 1975, he successfully completed AIT and was awarded MOS 94B. On 27 June 1975, he was assigned to the 2nd BN, 502nd Infantry Regiment, Fort Campbell, KY. 7. He received NJP under the provisions of Article 15, UCMJ as follows on: * 8 January 1976, for failing to obey a lawful order and for being absent without the proper authority from is place of duty from 7 to 8 January 1976 * 2 March 1976, for being absent without authority on 1 March 1976 * 2 March 1977, for being absent without authority on 24 February 1977 * 1 April 1977, for being absent without authority on 31 March 1977 8. On 26 May 1977, he was reported as AWOL from his assigned unit and on 24 June 1977 he was dropped from the rolls as a deserter. 9. On 23 July 1977, he returned to military control and on 25 July 1977 he returned to his assigned unit at Fort Campbell, KY. 10. On 31 July 1977, court-martial charges were preferred against him for one specification of being AWOL from 26 May to 23 July 1977 (59 days). 11. On 1 August 1977, he 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 or 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 of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. 12. In his request for discharge, he acknowledged he understood if the discharge request was approved, he could be discharged under other than honorable conditions. He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life. He declined to submit a statement in his own behalf. 13. On 3, 7, and 15 August 1977, respectively; his immediate, intermediate, and senior commanders all recommended approval of his request for a discharge with an under other than honorable conditions discharge. 14. On 18 August 1977, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 23 August 1977, he was discharged accordingly. 15. The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged by reason of conduct triable by court-martial (separation program designator (SPD) JFS) with the issuance of an Under Other than Honorable Conditions Discharge Certificate. 16. On 18 June 1985, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable. REFERENCE: AR 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 (emphasis added). 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(s) 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 under other than honorable conditions discharge was normally be furnished to an individual discharged for the good of the service. 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. After he consulted with legal counsel, he voluntarily requested a discharge to avoid a trial by court-martial. His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 3. His record shows he received NJP on six separate occasions and went AWOL on two occasions for a total of 72 days. 4. 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013865 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013865 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2