BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160001773 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: 27 July 2017 DOCKET NUMBER: AR20160001773 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: 27 July 2017 DOCKET NUMBER: AR20160001773 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 discharge under other than honorable conditions. 2. The applicant states he was absent without leave (AWOL) because of the conditions at home which caused him to believe that his mother was in danger. He had asked for a period of leave but it was denied. He felt he needed to be where he could assist his mother. It was never his intent to remain away but circumstances kept him longer than he intended. When the situation was stable, he turned himself in. As pointed out in his brother’s statement, he and his stepfather were both incarcerated and his mother was helpless and alone. He felt it was his responsibility to assist her and for that reason, he was AWOL and remained away as long as he did. 3. The applicant provides a self-authored statement and a statement from his brother. 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 28 September 1972. 3. On 5 February 1973 while still in initial entry training, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on 5 February 1973. He held military occupational specialty 94B (Cook) 4. Following completion of training, he was assigned to Headquarters, 51st Air Defense Detachment, 1st Advanced Individual Training Brigade, Fort Bliss, TX. 5. On 2 May 1973, he departed his unit in an AWOL status and he was dropped from the Army rolls as a deserter on 31 May 1973. He returned to military control on 29 August 1973. 6. On 29 August 1973, court-martial charges were preferred against the applicant for one specification of being AWOL from 2 May to 29 August 1973. 7. On 5 September 1973, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged and/or he understood: * he was submitting this request of his own free will and had not been coerced by anyone; he also understood the implications of his request * if the discharge request was approved he could be discharged under other than honorable conditions 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 Veterans Administration (now known as Department of Veterans Affairs) * he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life * he elected to submit a statement in his own behalf 8. In his statement, the applicant stated he did not want to stay in the Army because he could not adjust to life style and would not adjust under any circumstances. If he served time and got out, he would be AWOL again until he was kicked out. 9. The applicant’s intermediate and senior commanders recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. Each officer interviewed the applicant and in each case the applicant indicated he was AWOL because of his disliked the Army and had no intention of adjusting to the military lifestyle. 10. On 3 October 1973, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade, if applicable, and issuance of a discharge under other than honorable conditions. On 15 October 1973, the applicant was accordingly discharged. 11. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in lieu of trial by a court-martial under the provisions of AR 635-200, chapter 10. He completed 8 months and 18 days of active service and he accrued 119 days of lost time. His service was characterized as under other than honorable conditions. 12. His DD Form 214 also shows he was awarded or authorized the: * National Defense Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 13. On 27 October 1978, following a personal hearing, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his request for a discharge upgrade. 14. He provided a self-authored statement in which he stated: * there were riots in the 1970s and he decided to join the Army to get away from the environment * back then, family was all that a person had and he was grateful of whatever his family had * while away in the Army, his younger brother and step-father were incarcerated * he just wanted to go home to help his family * he wanted to make sure his immediate family were okay prior to being shipped out to Germany or Vietnam, he just wanted 1 week or 10 days of leave but he was turned down * he left to take care of his family, and when he determined that everything was okay, he turned himself in * he stayed about 3 months at the Personnel Control Facility * he was discharged without even bus fare to get home 15. He also provided a statement from his brother who stated: * he comes from a family of six * their mother was struggling at the time the applicant was inducted into the Army * he and his stepfather were incarcerated * the applicant was aware of their struggles and wanted to help the family * in the applicant’s effort to help, he felt he needed to leave the Army to be with his family and opted to take the avenue that he chose * the applicant was reported AWOL and the applicant now realizes that was not the proper action to take REFERENCES: AR 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, an Undesirable Discharge Certificate with a character of service of under other than honorable conditions was normally considered appropriate. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states 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 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. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. The separation authority did not consider his service to have met the criteria for an honorable or a general 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) AR20160001773 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001773 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2