BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20150017928 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: 27 April 2017 DOCKET NUMBER: AR20150017928 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: 27 April 2017 DOCKET NUMBER: AR20150017928 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 his discharge be upgraded to honorable. 2. He states that at the time of his discharge he felt he had nowhere to voice his concerns. He requested an upgrade of his discharge in 1977; however, he left out the reason for being absent without leave (AWOL) because he did not want his young children to know what happened until they were old enough to understand. 3. He provides a: * character reference statement * self-authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 5 February 1968. 3. His basic training unit reported him in an AWOL status from 18 March through 9 April 1968. His DA Form 20 (Enlisted Qualification Record) shows additional periods of lost time from on or about: * 1–30 September 1968, AWOL * 30 September – 11 December 1968, in a deserter status * 11 January-11 March 1969, AWOL * 12 March–20 July 1969, dropped from the rolls (DFR) * 26 July–20 November 1969, Confinement * 3 January–2 February 1970, AWOL * 3 February 1970–4 February 1971, DFR, AWOL 4. His DA Form 20B (Record of Court-Martial Conviction) shows two special court-martial convictions for the above two periods of lost time: * on 2 January 1969, for being AWOL from 1 September to 12 December 1968 * on 14 August 1969, for being AWOL from 11 January to 20 July 1969 5. On 10 February 1971, a third court-martial charge was preferred against him for one specification of being AWOL from 3 January 1970 to 4 February 1971. 6. On 31 February 1971, 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 Uniform Code of Military Justice (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 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. 7. In his request for discharge, he acknowledged he understood if the discharge request was approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. He declined to submit a statement on his own behalf. 8. On 16 March 1971, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate. On 24 March 1971, he was discharged accordingly. 9. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with an under other than honorable conditions characterization of service. He completed 10 months and 11 days of net active service and he had 828 days of lost time due to being AWOL and in confinement. 10. On 28 February 1978, the Army Discharge Review Board reviewed his discharge under the Department of Defense Special Discharge Review Program and determined he did not meet the criteria of the program and did not qualify for a discharge upgrade. 11. The applicant provides a character reference statement from the president of the Greenfield Fish and Game Club who states the applicant was a club member during the 1980’s. He was considerate and an asset to the club. 12. He also provides a self-authored statement detailing the circumstances surrounding his numerous periods of AWOL. He contends that each period of AWOL was based on him having to take care of his wife and children and he had no other alternative. REFERENCES: 1. Army Regulation 635-200 sets forth the policy for administrative 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states 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. 2. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. His contentions were considered; however, his record shows he had more than 2 years of lost time due to being AWOL and in confinement. Based on this extensive periods of AWOL, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017928 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017928 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2