BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160001539 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: 6 July 2017 DOCKET NUMBER: AR20160001539 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: 6 July 2017 DOCKET NUMBER: AR20160001539 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 service characterization. 2. The applicant states his commander told him the character of his discharge would be automatically upgraded after 6 months. To his knowledge, this has not happened. He claims his record contains a DD Form 215 (Correction to DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)) which lists a reenlistment eligibility (RE) code of RE-3. To his understanding he would have been able to reenlist with a waiver. He hopes having an RE-3 code will help support an upgrade of the characterization of his service. The only trouble he was ever in was for misappropriation of a military vehicle. He claims he was given the vehicle by the motor pool; however, it turned out to be the staff vehicle and that is why he got in trouble. He further states he does not believe the infraction justifies the punishment he received. 3. The applicant provides: * National Archives Form 13038 (Certification of Military Service) * DD Form 214 * DD Form 215 * DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) 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 22 July 1968 for 3 years. 3.  On 20 March 1969, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for wrongfully appropriating a military vehicle on 10 March 1969. 4.  The record shows court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 1 to 2 April and from 3 to 5 April 1969. Additional charges of willfully disobeying a lawful order from a superior commissioned officer, stealing a sedan (property of the United States) and damaging by repainting a sedan (property of the United States) were also preferred. 5.  On 29 April 1969, the applicant underwent a mental status evaluation which noted he was mentally responsible and possessed the mental capacity to understand and participate in his discharge proceedings. 6.  On 3 June 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 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. A statement in his behalf was not provided. 7.  On 11 June 1969, the applicant completed a separation physical and he was found to be fully qualified for separation. 8.  On 19 June 1969, 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 had been a below average Soldier during his tour in the unit. He displayed no respect for the military, obedience to orders, or responsibility to duty or personal appearance. He was a habitual offender of the more serious articles outlined in the Manual for Court Martial. In the past 6 months, he had earned and received three Article 15s for these infractions, and had recently been reduced to the rank of private for the same. His appearance, actions and attitude were considered a bad influence on the other members of the command. 9.  On 20 June 1969, his intermediate commander 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. 10.  On 25 June 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 27 June 1969, he was discharged accordingly. 11.  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 5 days of creditable active service with 1 day of lost time. This document shows he received the National Defense Service Medal. Item 15 (Reenlistment Code) contains the entry "RE-3B." 12.  His records document no acts of valor, significant achievement, or service warranting special recognition. 13.  On 17 March 1971, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He claimed he was promised an honorable discharge in 6 months if he would accept a discharge under other than honorable conditions. He also claimed he requested an honorable discharge so he could reenlist in the U.S. Army. On 2 February 1972, the ADRB informed him that his request was denied and that he was properly discharged. 14.  On 22 November 1971, the applicant's DD Form 214 was corrected by DD Form 215 to show item 15 as "RE-3" and item 30 (Remarks) to contain the entry "Table 2-5 AR 601-201 applies." 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. 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. 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. By submitting his request, he acknowledged he was guilty of the cited offenses shown in the statement of charges. 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. His records document no acts of valor, significant achievement, or service warranting special recognition. 5. Notwithstanding the applicant's contentions, there are no provisions in Army regulations for automatically upgrading a discharge after a period of time has elapsed. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants an upgrade. Therefore, the applicant's contentions that he was told his discharge would be upgraded after 6 months or that he was eligible to reenlist with a waiver appears wholly insufficient to upgrade his under other than honorable conditions discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001539 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001539 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2