IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150016627 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 March 2017 DOCKET NUMBER: AR20150016627 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 March 2017 DOCKET NUMBER: AR20150016627 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 undesirable discharge. 2. The applicant states he was in an accident and found himself in a training unit with a back brace. He retained an attorney and went to Federal court in Hammond, Indiana. He was supposed to receive treatment and then be discharged. His discharge for the good of the service is wrong and should be upgraded. 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 29 August 1969 for a period of 3 years. 3. On 3 October 1969, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty. 4. On 15 December 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 6 October 1969 to 18 October 1969. He was sentenced to hard labor for 2 months and forfeiture of $20.00 pay per month for 3 months. On 9 January 1970, the convening authority approved the sentence, but suspended the portion pertaining to hard labor for 6 months, at which time the suspended portion of the sentence will be remitted without further action unless the suspension was sooner vacated. 5. On 6 May 1970, NJP was imposed against him for being AWOL from 29 April 1970 to 4 May 1970. 6. He was AWOL again from 16 May 1970 to 4 August 1970 and from 6 August 1970 to 23 February 1971. On 8 June 1971, charges were preferred against him for the AWOL periods. 7. On 23 June 1971, he underwent a separation physical examination and was found qualified for separation. His Standard Form 89 (Report of Medical History), dated 23 June 1971, indicates he was treated for a back injury caused by an automobile accident on 11 October 1969. 8. His records contain a DA Form 2496 (Disposition Form) from Mental Health Community Services, U.S. Army Hospital, Fort Carson, dated 29 June 1971, which states: a. The applicant was initially seen on 5 March 1971 as an inpatient for a psychiatric evaluation in connection with a back injury. He has since been followed at Mental Health Community Services in a rehabilitative effort. b. He presents a history of adjustment trouble and entered the military as an escape from personal problems. He enlisted in August 1969 and was involved in an automobile accident the following October. After treatment for a back injury, he was AWOL and took legal action against the Army because he felt he had not been given adequate medical care. During the spring of 1971, he was admitted to the Fort Carson U.S. Army Hospital for further evaluation. Subsequent testing revealed no organic damage, but some degree of psychosomatic illness and malingering. c. He is not eligible for discharge through medical-psychiatric channels. However, it is felt that he will not make an adequate adjustment to military life because of his character disorder and that separation from the military through administrative channels would be the most appropriate action. 9. His records also contain a Standard Form 513 (Clinical Record – Consultation Sheet), dated 29 June 1971, stating his records were reviewed. His expiration term of service physical had been left hanging pending neurosurgical and psychiatric evaluation. This has been completed and he has no disqualifying defect from an orthopedic, neurosurgical, or psychiatric standpoint and he is cleared for separation without necessity of medical board. 10. His records are void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 15 July 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and assigned separation program number 246 (discharge for the good of the service). He completed 1 year of creditable active service and accrued 321 days of lost time. 11. There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. 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 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 Veterans Administration 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 to an individual who was discharged for the good of the service. Chapter 10 of the version currently in effect is essentially unchanged. 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: The applicant's contentions were carefully considered. However, his records are void of the specific facts and circumstances surrounding his discharge. It appears that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of 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) AR20150016627 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016627 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2