BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160001616 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: 28 November 2017 DOCKET NUMBER: AR20160001616 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: 28 November 2017 DOCKET NUMBER: AR20160001616 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 under other than honorable conditions discharge to a general discharge. 2. The applicant states as a result of a mix-up/error involving his age, he received his draft notice at age 17. As the eldest son he was working to help support his family and being drafted caused a major hardship for his family. 3. The applicant provides copies of a: * California Department of Veterans Affairs (VA), Counsel Power of Attorney * DD Form 47 (Record of Induction) * DA Form 20 (Enlisted Qualification Record), 2 pages COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: Counsel provided no statement or evidence in support of the applicant’s request beyond the VA Power of Attorney. 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 12 January 1971 at 18 years, 11 months, and 5 days, and he did not completed basic training. Initially, the applicant’s DD Form 47 (Record of Induction), dated 12 January 1971, listed his date of birth (DOB) as . 3. A second DD Form 47 was prepared on an unknown showing his DOB was corrected to “.” 4. The applicant's DA Form 20 (Enlisted Qualification Record), item 42 (Remarks) confirms item 6 (DOB) of this form was also corrected to show his correct DOB as . The applicant’s certificate of live birth was attached to this form confirming this is his correct DOB. 5. On 23 January 1971, he received nonjudicial punishment (NJP) for being absent without leave (AWOL) on 22 January 1971. 6. He was found guilty by special courts-martial on the following occasions: * 5 March 1971, for breaking restriction, disobeying a lawful order from a commissioned office, disobeying a lawful order from a noncommissioned officer, and for being AWOL on 30 January 1971 and 4 February 1971 * 22 April 1971, for being AWOL from 7 through 14 March 1971 7. On 27 April 1971, the applicant was assigned to the Correctional Training Facility Fort Riley, KS, for rehabilitation. On 13 May 1971, he received a special court-martial conviction for escaping from confinement on 3 May 1971. 8. In June 1971, he was confined at the Correctional Holding Detachment, U.S. Disciplinary Barracks, Fort Leavenworth, KS. 9. On 3 September 1971, the applicant received a reprimand for failure to comply with instructions to get into the proper uniform. 10. On 10 September 1971, while confined at the Correctional Holding Detachment, U.S. Army Disciplinary Barracks, Fort Leavenworth, the applicant’s commander recommended that he be discharged from the military under the provisions of paragraph 12, Army Regulation 635-212, for unfitness, “due to frequent incidents of a discreditable nature towards military authorities,” with an Undesirable Discharge Certificate. The commander based his recommendation on the above misconduct. a. The commander also stated the applicant’s conduct had been satisfactory; however, his negative attitude towards further duty and an unsatisfactory military record indicates he had no potential for performing acceptable military service and should be discharged for unfitness. b. The applicant’s supervisors and the psychiatrist concurred that further rehabilitation efforts would not enable him to perform creditable military service. The applicant was advised of his rights. 11. On 20 September 1971, the appropriate authority approved the applicants discharge recommendation with the issuance of an Undesirable Discharge Certificate. 12. Only a portion of the applicant's discharge documents are available for review. His record contains the commander's recommendation for discharge and the DD Form 214. 13. On 8 November 1971, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness, with service characterized as under other than honorable conditions, with an Undesirable Discharge Certificate. He had completed 27 days of creditable active service and he had 269 days of lost time, due to being AWOL and in confinement. His DD Form 214 also shows his DOB as . 14. There is no indication the applicant 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 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate at the time. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. 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. b. 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. 3. 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 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: 1. The applicant contends he was inducted into the Army at age 17. However, according to his certificate of birth and the other available evidence, if he was born in on and was inducted into the Army on 12 January 1971; he would have been almost age 19 at the time of induction and age 20 at the time of discharge on 8 November 1971. 2. The applicant was discharged under the provisions of Army Regulation 635-212 for unfitness, with service characterized as under other than honorable conditions, with the issuance of an Undesirable Discharge Certificate. He had completed 27 days of creditable active service and he had 269 days of lost time, due to being AWOL and in confinement. 3. 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, based on the available evidence it is presumed the applicant's character of service accurately reflects his overall record of service. He had received three courts-martial and NJP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001616 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001616 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2