BOARD DATE: 31 August 2017 DOCKET NUMBER: AR20160000992 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: 31 August 2017 DOCKET NUMBER: AR20160000992 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: 31 August 2017 DOCKET NUMBER: AR20160000992 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, in effect, an upgrade of the characterization of his service. 2. The applicant states, in effect, the Social Security Administration told him he would have to have his discharge upgraded in order to receive compensation from the Department of Veterans Affairs (VA). 3. The applicant provides: * Standard Form (SF) 180 (Report Pertaining to Military Records), dated 19 August 2015 * Letter from the National Personnel Records Center (NPRC), dated 17 December 2015 * Service Request issued by NPRC, dated 24 December 2015 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 30 January 1968. 3. The applicant's records show, on 24 July 1968, a special court-martial convicted him of being absent without leave (AWOL) from on or about 7 through 9 February 1968 and on or about 12 February through on or about 18 July 1968. The sentence was adjudged on 26 July 1968 and approved on 1 August 1968. 4. His records show, on 3 March 1969, a special court-martial convicted him of being AWOL from on or about 1 August 1968 through on or about18 February 1969. The sentence was adjudged on 11 March 1969 and approved on 17 March 1969. 5. Evidence shows, on 25 August 1969, court-martial charges were preferred against him for being AWOL from on or about 2 June to 5 July 1969. 6. On 12 August 1969, 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 understanding 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 understanding 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. A statement in his behalf was not provided. 7. On 21 August 1969, his immediate commander opined that, in view of the applicant's background and repeated AWOLs, the applicant was not a proper subject for rehabilitation. The applicant expressed a desire to terminate his military service; therefore, rehabilitative efforts would appear to be futile. In his opinion, the best interest of the Army would be served by eliminating the applicant from service. There were no reasonable grounds to believe the applicant is or was at the time of his misconduct, mentally defective, deranged or abnormal. 8. After careful consideration, his intermediate commander concluded that all rehabilitative efforts had been utilized in an attempt to rehabilitate the applicant. He stated the applicant was a former graduate of the U.S. Army Correctional facility at Fort Riley, KS. It appears the applicant has no desire to rehabilitate himself and, furthermore, he expressed an intense desire to terminate his military service, regardless of the type of discharge he received. His immediate and intermediate commanders recommended approval of the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, and the issuance of an Undesirable Discharge Certificate. 9. On 10 September 1969, 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 17 September 1969, he was discharged accordingly. 10.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, 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 7 months and 8 days of creditable active service with 193 days of lost time. 11.  His records document no acts of valor, significant achievement, or service warranting special recognition. 12. 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: 1. Army Regulation 635-200 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 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. This regulation 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. This regulation 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 (ABCMR) 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: 1. The record shows he voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in jail time and a bad conduct discharge. 2.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. There is no evidence of procedural errors that would have jeopardized his rights. The characterization of service he received was commensurate with the reason for his discharge. 3. 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. 4. 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. 5. Notwithstanding the applicant's contentions, there are no provisions in Army regulations for upgrading a discharge to obtain VA or other benefits. 6. 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, 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) AR20160000992 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000992 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2