BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150016310 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: 31 January 2017 DOCKET NUMBER: AR20150016310 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: 31 January 2017 DOCKET NUMBER: AR20150016310 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. 2. The applicant states he was a young man at the time and made a bad choice. In 1976, he joined the U.S. Army in order to take care of and provide for his girlfriend who was having his child. He later found out his girlfriend was dating his best friend. He got upset then got into a fight, which led to him getting an undesirable discharge. If he had to do it all over again, he would have made better choices and stayed in the service. He made a mistake at that time in his life. 3. The applicant provides an undated Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim). 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 3 March 1976, at 17 years of age. He entered active duty at Fort Jackson, SC for the purpose of completing his initial entry training (IET). His record indicates he did not finish his IET. 3. He completed basic combat training and began his advanced individual training (AIT) on 30 April 1976. He was assigned to Company C, 16th Battalion, 4th AIT Brigade. 4. His record shows he was involved in an incident, wherein it appears he assaulted two fellow Soldiers on 24 May 1976, causing severe bodily injury resulting in the loss of teeth and requiring stitches. It appears court-martial charges were preferred against him for this incident; however, the corresponding DD Form 458 (Charge Sheet) is not available for review. 5. He consulted with legal counsel on 9 June 1976 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service – in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 6. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He declined to make a statement in his behalf. 7. The applicant's immediate commander recommended his case be tried before a special court-martial due to the severity of the misconduct that resulted in the charges. The applicant's battalion and brigade commanders endorsed his immediate commander's recommendation. 8. The separation authority approved the applicant's request for separation on 2 July 1976, under the provisions of Army Regulation 635-200, Chapter 10, and directed that he be issued an Undesirable Discharge Certificate. 9. The applicant was discharged from the Army on 9 July 1976. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, and his character of service was under other than honorable conditions. 10. The Army Discharge Review Board denied his request for an upgrade of his discharge on 22 January 1979. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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. 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 or offenses 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 Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service. DISCUSSION: 1. The applicant enlisted in the Regular Army at 17 years of age. While attending his advanced individual training, he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, Chapter 10. 2. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 3. His voluntary request for discharge to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. The characterization of service he received was commensurate with the reason for his discharge. 4. With respect to the applicant's age, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their periods of military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016310 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2