BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018031 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 May 2017 DOCKET NUMBER: AR20150018031 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 May 2017 DOCKET NUMBER: AR20150018031 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 to his under other than honorable conditions (UOTHC) characterization of service to honorable. 2. The applicant gives brief descriptions of the circumstances which led to his multiple absences without leave (AWOL). He states that: a. During basic training, his girlfriend was pregnant and eventually gave birth. His Drill Sergeant did not get along with him very well, seemed racist toward him for being Native American, and held grudges against him. He became scared and went AWOL to be with his girlfriend and daughter. He was arrested and sent to Fort Lewis, WA. His girlfriend and daughter followed him. b. At Fort Lewis he was assigned to a Special Processing Detachment (SPD) unit working long hours and doing demeaning work. His girlfriend became upset and told him to leave with her and the baby to go back to Belcourt, ND. He went AWOL until he was arrested and sent to Fort Carson, CO. He worked odd jobs to support his girlfriend and daughter. c. At Fort Carson he was placed in an SPD unit. He was attacked by other Native American soldiers and used a knife to defend himself. No one in his unit helped to include his Drill Sergeants and his cousin. He feared for his life, so he went AWOL to Ogden, UT, to be with relatives. He eventually went back to Belcourt, ND, to be with his girlfriend and daughter. He was arrested and sent back to Fort Carson. d. At Fort Carson he awaited court-martial. He was given a choice between a dishonorable discharge or going to prison. He had concerns for his life and safety, as well as his girlfriend and daughter. He was told he would not receive a dishonorable discharge, but his service would be characterized UOTHC if he chose the option. He requested to deploy to Vietnam. His request was not considered, so he chose to exit the Army with service characterized as UOTHC. He did not know the difference between UOTHC and honorable. Now that he knows, he believes he would have made the choice to serve time in prison and continue his military career. He accepted the UOTHC for his family. All he wanted was to serve his country and deploy to Vietnam. He would like an upgrade to his discharge to be eligible for Department of Veterans Affairs (VA) health benefits. 3. The applicant provides a self-authored statement and a copy of his 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 enlisted in the Regular Army on 31 January 1969 and he held military occupational specialty (MOS) 11C (Indirect Fire Infantryman). On 5 May 1969, the applicant was assigned to Company B, 3rd Battalion, 2nd Brigade, U.S. Army Training Center, Fort Ord, CA. 3. The On 7 May 1969, the applicant’s unit reported him AWOL. He was dropped from the unit rolls (DFR) on 4 June 1969 until his return to military control (RMC) on 23 November 1969. He was assigned to the SPD, Fort Lewis, WA. 4. Special Court-Martial Order Number (SPCMO #) 26, issued by Headquarters, Special Troops, Fort Lewis, WA, on 21 January 1970, shows the applicant was found guilty and convicted of being AWOL from 7 May 1969 to 18 November 1969. He was sentenced to be confined at hard labor (CHL) for 4 months and forfeiture of $35.00 pay per month for 4 months. His court-martial was adjudged on 7 January 1970 and approved on 21 January 1970. His confinement was suspended, but the suspension was later vacated and the sentence was ordered executed by SPCM # 203. 5. The applicant was confined in the Post Stockade, Fort Lewis, WA, from 9 February 1970 to 4 May 1970. Upon his release he was assigned to the SPD, Fort Lewis, WA. 6. On 7 May 1970, the applicant was reported AWOL. He was DFR on 8 May 1970 until his RMC on 16 June 1970. He was assigned to the SPD, Fort Carson, CO. 7. SPCMO # 989, issued by Headquarters Command, U.S. Army Garrison, Fort Carson, CO, on 21 July 1970, shows the applicant was found guilty and convicted of being AWOL from 7 May 1970 to 16 June 1970. He was sentenced to CHL for 2 months. His CHL was suspended. His sentence was adjudged on 30 June 1970 and approved on 21 July 1970. 8. On 6 August 1970, the applicant was reported AWOL. He was DFR on 12 August 1970. His records show that he was apprehended by civilian authorities in Ogden, UT. He was held for being drunk, resisting arrest, and escaping from confinement. He was RMC on 2 December 1970 and assigned to the SPD, Fort Lewis, WA. 9. SPCMO # 38, issued by Headquarters Command, U.S. Army Training Center, Infantry and Fort Lewis, Fort Lewis, WA, on 26 January 1971, shows the applicant was found guilty and convicted of being AWOL from 6 August 1970 to 2 December 1970. He was sentenced to CHL for 90 days and forfeiture of $75.00 pay per month for 3 months. His sentence was adjudged on 19 January 1971 and approved on 26 January 1971. The portion of his sentence which provided for CHL in excess of 30 days and forfeitures in excess of $50.00 pay per month for 3 month was suspended. 10. The applicant was confined in the Post Stockade, Fort Lewis, WA, from 19 January 1971 to 18 February 1971. Upon his release he was assigned to the SPD, Fort Lewis, WA. 11. On 7 April 1971, the applicant was reported AWOL. He was DFR on 13 April 1971. His records show that he was apprehended by civilian authorities on 7 October 1971 and RMC on the same day. He was assigned to U.S. Army Personnel Control Facility, U.S. Army Garrison, Fort Carson, CO. 12. On 8 October 1971, the Commander, Headquarters Command, U.S. Army Garrison, Fort Carson, CO, preferred summary court-martial charges against him for one specification of being AWOL from 7 April 1971 to 7 October 1971. 13. On 14 October 1971, the applicant consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of a discharge under less than honorable conditions, and of the procedures and rights available to him. 14. Following consultation with 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. In his request for discharge, He acknowledged that: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood he could be discharged UOTHC and furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge 15. On 18 October 1971, his immediate commander recommended approval of the applicant’s discharge for the good of the service if appropriate and requested an Undesirable Discharge Certificate be furnished. In his endorsement he stated that during an interview the applicant assured him that he did desire to be discharged from the Army. The commander opined that based on his present attitude and record, the applicant would never complete his service and that any attempt at rehabilitation would be ineffective. 16. On 21 October 1971, his intermediate commander recommended approval of the applicant’s request and that he be given an Undesirable Discharge Certificate. 17. On 1 November 1971, the separation authority approved the applicant's request and directed that he be furnished an Undesirable Discharge Certificate and be discharged in the lowest enlisted grade. 18. On 4 November 1971, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, with service characterized as UOTHC. He completed 11 months and 16 days of creditable active service and had 657 days of lost time. 19. On 12 February 2015, the applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade. On 24 March 2015, the ADRB sent a letter to the applicant stating they did not have the authority to process applications received from service members after 15 years from the date of discharge. The applicant was advised to petition the ABCMR. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred. Although an honorable or general discharge was authorized, an undesirable/UOTHC discharge was normally considered appropriate. a.  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.  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. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. DISCUSSION: 1. The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant 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. The characterization of service he received was commensurate with the reason for his discharge. 2. The ABCMR does not normally grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for VA benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for benefits should be addressed to the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018031 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018031 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2