IN THE CASE OF: BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017369 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: 6 April 2017 DOCKET NUMBER: AR20150017369 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: 6 April 2017 DOCKET NUMBER: AR20150017369 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 characterization of service. 2. The applicant states he was in the U.S. Army for more than 90 days and he received a "chapter 10, hardship" discharge. At the time, he was having family problems, which ended in divorce. 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 was inducted into the Army of the United States on 19 March 1969. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 April 1969, for failing to go at the time prescribed to his appointed place of duty. 4. The applicant's records show a summary court-martial convicted him of being absent without leave (AWOL) during the period 9 through 13 June 1969. The court-martial was adjudicated on 15 July 1969 and approved on 16 July 1969. 5. He accepted NJP under the provisions of Article 15 of the UCMJ on 17 December 1970 for absenting himself from his unit from 10 to 24 November 1969. 6. His record contains a DD Form 458 (Charge Sheet), dated 22 January 1970, which shows court-martial charges were preferred against him for being AWOL from on or about 12 to 15 January and from 16 to 19 January 1970. An additional charge of willfully disobeying a lawful order from a superior commissioned officer was also preferred. 7. On 18 February 1970, the applicant met 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. He acknowledged that he had not been subject to coercion with respect to his request for discharge, and that counsel advised him of the implications attached to his requested discharge. a. He acknowledged that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He understood that because of the issuance of such a discharge, he would be deprived of many or all Army benefits. b. He acknowledged that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both State and Federal law. He also understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority's consent or without the separation authority's consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. d. He submitted a statement in his behalf, wherein he claimed to have stopped his heroin addiction, but still smoked marijuana occasionally. He talked it over with his wife and they both agreed that if he did not get out of the Army soon, he would lose both her and the baby. He loved his wife very much because she was the only person in the world who would put up with him and help him with his narcotic problem. His only purpose in life was to get back to his family and work like a real man. He did not intend to desert, but the last ten months were torture for him and his family. If he was sent back to duty he would not remain there and he would leave at the first opportunity. 8. On 18 February 1970, his immediate commander recommended approval of the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, and the issuance of a General Discharge Certificate. He further stated the applicant did not respond to any corrective action and refused to obey the orders of his superiors. 9. On 6 March 1970, his intermediate commander recommended approval of the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, and the issuance of a General Discharge Certificate. He further stated the applicant had continued a pattern of conduct from his civilian life that has no place in the military. His continued usage of dangerous drugs made his service marginal at best. The applicant stated he would continue this pattern of disorder and breach of discipline. 10. On 18 March 1970, his commander also recommended approval of the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, and the issuance of a General Discharge Certificate. He stated the applicant exhibited no motivation to become a good Soldier and had shown a negative attitude toward the military with no desire to change his pattern of repeated AWOL violations. 11. On 26 March 1970, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. On 30 March 1970, he was discharged accordingly. 12. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 11 months and 8 days of creditable active service with 34 days of lost time. 13. There is no evidence indicating he applied to the Army Discharge Review Board 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 that regulation provides, in pertinent part, 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 and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 states 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's record shows he was charged with the commission of an offense punishable under the UCMJ 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. Despite the applicant's contentions, the evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 2. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His chain of command recommended he receive a general discharge. The separation authority determined he would receive an Undesirable Discharge Certificate (i.e., service characterized as under other than honorable conditions). This characterization of service he received was commensurate with the reason for his discharge, and the chain of command's recommendations were not binding on the separation authority. 3. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service does not appear to meet the criteria for a general or an honorable characterization 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) AR20150017369 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017369 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2