BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017206 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: 4 April 2017 DOCKET NUMBER: AR20150017206 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: 4 April 2017 DOCKET NUMBER: AR20150017206 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 to a general, under honorable conditions discharge. 2. The applicant states he was physically and emotionally abused by his father. He decided not to take it anymore and enlisted in the U.S. Army when he was very young and immature. a. He was assigned to a "spit and polish" unit in Fairbanks, AK, where he was yelled at and became very nervous. Due to his past, he started yelling back at his superiors. b. He states that his fiancée stopped writing to him and he had no contact with his family. One day he decided to go home. When he got home, he got married and decided to stay there in an absent without leave (AWOL) status. c. Since his discharge he has had two strokes and a back injury from an automobile accident. He was in a coma for three months and he is now disabled. He tried to serve his country and would like to have the characterization of his discharge changed. 3. He provides no additional documents in support of his application. 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's military personnel records show he enlisted in the Regular Army on 14 February 1969 for a period of 3 years. At the time, he was 17 years of age. a. Upon completion of training he was awarded military occupational specialty (MOS) 91B (Medical Specialist). b. He was advanced to private first class (PFC)/pay grade E-3 on 4 October 1969. 3. On 6 October 1969, he was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 562nd Artillery, U.S. Army Alaska, as a Battery Aidman (MOS 91B). On 1 May 1970, the unit was redesignated Headquarters and Headquarters Company, Fort Wainwright. 4. He accepted nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 128, for assaulting a Soldier on 19 April 1970. His punishment included reduction to private/pay grade E-2, a forfeiture of $25.00 pay for one (1) month, and restriction for a period of seven (7) days. 5. Headquarters, Special Processing Battalion, Fort George G. Meade (FGGM), MD, Special Court-Martial (SPCM) Order Number 1216, dated 25 September 1970, shows the applicant was tried by a SPCM on 24 September 1970. a. He pled guilty to and was found guilty of violation of the UCMJ, Article 86, for being AWOL from his unit from 6 July to 10 September 1970. b. He was sentenced to restriction to the limits of FGGM for 60 days, to perform hard labor without confinement for 60 days, and to forfeiture of $50.00 pay for 2 months. c. On 25 September 1970, the SPCM Convening Authority approved only so much of the sentence as provided for the performance of hard labor without confinement for 60 days and a forfeiture of $50.00 pay for 2 months and ordered the sentence be executed. 6. On 27 January 1971, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL from his unit from 25 September 1970 to 14 January 1971. 7. The applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in-lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in-lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. d. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. e. The applicant and his counsel placed their signatures on the document. 8. The chain of command recommended approval of the applicant's request for discharge for the good of the service in lieu of trial by court-martial. 9. On 10 February 1971, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that he be furnished an Undesirable Discharge Certificate. 10. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 10 February 1971 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, with an Undesirable Discharge Certificate and a character of service of under conditions other than honorable. He had completed 1 year, 5 months, and 18 days of net active service during this period and he had 188 days of time lost. 11. The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and a change to the narrative reason for separation. On 12 April 1976, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable and denied the applicant relief. REFERENCES: AR 635-200, in effect at the time, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Chapter 3, 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 applicant contends his discharge under conditions other than honorable should be upgraded to a general discharge because he was abused as a child; he was young and immature when he entered the Army; he was assigned to a unit that demanded adherence to strict standards; and his fiancée stopped communicating with him, so he went AWOL. 2. The applicant successfully completed training, was awarded MOS 91B, and he attained the rank of PFC (E-3) with less than 8 months of active service, which demonstrates the capacity for honorable service. 3. The applicant's comment pertaining to his unit in Alaska being a "spit and polish" unit is acknowledged. It is noted that he served successfully in his units during both basic combat training and advanced individual training where the mission was, in part, to instill in Soldiers adherence to military standards. 4. The evidence of record shows the applicant's request for discharge under the provisions of AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 5. The evidence of record shows the applicant received NJP for assaulting a Soldier, he was found guilty at a SPCM of being AWOL for a period of more than 2 months, and he was charged with admitted guilt to a second period of prolonged AWOL. a. He had a total of 188 days (i.e., more than 6 months) of time lost and he was reduced to private/E-1. b. He completed less than half of his 3-year active duty obligation. c. The separation authority determined the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and directed his service be characterized as under conditions other than honorable. This characterization was commensurate with the reason for his 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) AR20150017206 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017206 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2