BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160001291 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: 15 June 2017 DOCKET NUMBER: AR20160001291 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: 15 June 2017 DOCKET NUMBER: AR20160001291 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. 2. The applicant states: * he regrets what he did – however, after all these years, he is now a better person and has not been in any trouble * he was 17 years of age at the time and he thought he was a man – he wanted to do all he could but he felt lost and wanted to return to his family * he was also told his discharge could be upgraded after 6 months from date of discharge 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 born in September 1950 and he enlisted in the Regular Army for a 3-year term on 23 October 1967 at 17 years and 1 month of age. 3.  On 2 January 1968, he departed his training unit in an absent without leave (AWOL) status and he returned to military control on 5 January 1968. 4.  On 5 February 1968, he again departed his unit in an AWOL status and he was dropped from the rolls as a deserter on 5 March 1968. He was apprehended by civil authorities and returned to military control on 7 June 1968. 5.  On 2 July 1968, he was convicted by a special court-martial of one specification of AWOL from 5 February to 7 June 1968. The court sentenced him to confinement at hard labor for 3 months and forfeiture of pay for 6 months. The convening authority approved the sentence on 2 July 1968. 6.  Following his confinement, the applicant was reassigned to the 808th Engineer Battalion in Alaska. 7.  His DA Form 20 (Enlisted Qualification Record) shows the entry: Charged with Assault with a dangerous weapon o/a [on or about] 25Jun69 [25 June 1969]. Adjudged that defendant is committed to custody of Attorney General for 3 yrs [years]; on condition that defendant be confinedin [sic] jail or treatment instution [sic] for 11 months and 26 days, the remainder of the sentence suspended and the individual placed on probation upon the following conditions: (1) he obey all local state and federal laws. (2) he comply with all rules and regulations of the probation department. 8.  The complete facts and circumstances concerning the applicant's discharge are not available for review with this case. However, his records contain: a.  Unit Order Number 43, issued by Company A, 808th Engineer Battalion, on 14 August 1970, reducing him to private/E-2 due to misconduct effective 12 August 1970. b.  Special Orders Number 196, issued by Headquarters, Fort Wainwright, AK, on 21 September 1970, discharged the applicant under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), effective 2 October 1970. c.  Unit Order Number 52, issued by Company A, 808th Engineer Battalion, on 25 September 1970, reducing him to the lowest enlisted grade of E-1 effective 25 September 1970. d.  Special Orders Number 275, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 2 October 1970, ordering his discharge from active duty effective 2 October 1970 with an undesirable discharge. e.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), showing he was discharged on 2 October 1970 under the provisions of AR 635-206, separation program number (SPN) 246 (chapter 10). His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. This form also shows he completed 2 years, 11 months, and 10 days of active service. 9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1.  AR 635-206, paragraph 24, in effect at the time, provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service. If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General. Furthermore, AR 635-206, paragraph 33, provided that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. When an individual was discharged for conviction by a civil court, the entry on the DD Form 214 would be "Section IV, AR 635-206, SPN 73." 2.  AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-206 and sets forth the basic policy for the separation of enlisted personnel. a.  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. b.  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. c.  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, an undesirable discharge was considered appropriate at the time the applicant was discharged. When an individual is discharged in lieu of trial by court-martial, the entry on the DD Form 214 would be "AR 635-200, SPD [separation program designator] 246." 3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR decides cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: The applicant's records are void of the complete facts and circumstances that led to his discharge. However, his records contain several indicators of misconduct. a.  It appears he was convicted by civil court while serving in Alaska and sentenced to a 3-year sentence consisting of confinement in jail or treatment institution for 11 months and 26 days and the remainder was suspended (with certain stipulations). The civil conviction would have necessitated initiation of separation action against him by his chain of command. b.  The separation orders issued by Headquarters, Fort Wainwright, AK, on 21 September 1970, and the reduction orders, issued by the 808th Engineer Battalion, on 25 September 1970, both suggest that separation action was indeed initiated by his chain of command under the provisions of AR 635-206 due to the civil conviction. This would have required assignment of SPN 73. c.  He left Alaska and arrived at Fort Lewis, WA, for separation processing. At Fort Lewis, it appears his separation packet was not included. When military personnel processed his DD Form 214, they inadvertently listed the authority for separation as chapter 10, SPD 246 (in lieu of trial by court-martial). d.  The administrative error on the DD Form 214 regarding the SPN or paragraph of the regulation does not change the fact that the applicant was ordered discharged from active duty with his service characterized as under other than honorable conditions and was issued an Undesirable Discharge Certificate. e.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate otherwise. Further, it is presumed that the applicant's character of service accurately reflects his overall record of service. f.  The applicant's discharge is indicative of an established pattern of frequent difficulty with civil and military authorities: AWOL, court-martial conviction, and civil conviction – clearly his military record was not exemplary and his retention was neither practicable nor feasible. g.  The Army does not now have nor did ever have a policy wherein the characterization of service was upgraded due to the passage of time. While the applicant was young when he enlisted, there is no evidence his acts of misconduct were attributed to his age. h.  Given his extensive AWOL history, court-martial conviction, and civilian arrest and conviction, it is clear the applicant's chain of command determined that his service was not satisfactory. An honorable characterization of service 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001291 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001291 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2