BOARD DATE: 1 August 2017 DOCKET NUMBER: AR20160001794 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: 1 August 2017 DOCKET NUMBER: AR20160001794 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: 1 August 2017 DOCKET NUMBER: AR20160001794 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 conditions other than honorable characterization of service. 2. The applicant states, in effect, he has lived his life the best he could, raised a family, and worked at the U.S. Post Office as a custodian. He recently resigned due to his health and hearing loss. He has carried the burden of his discharge for over 45 years. 3. The applicant provides a self-authored statement, a letter of employment confirmation, and a letter of support. 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 8 July 1970 for a period of 3 years. He was assigned to Fort Dix, NJ, for his military training. 3. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 5 November 1970 for being absent without leave (AWOL) from on or about 31 October to 2 November 1970. 4. Special Court-Martial Order Number 27 issued by Headquarters Command, U.S. Army Training Center, Fort Dix, NJ, dated 27 January 1972, shows the applicant was convicted of violating Article 86 of the UCMJ by: a. Specification 1: Leaving his unit in an AWOL status from on or about 31 January to 14 September 1971. b. Specification 2: Leaving his unit in an AWOL status from on or about 22 September to 30 November 1971. 5. His sentence was adjudged on 18 January 1972 and included confinement at hard labor for 60 days, forfeiture of $150.00 pay for 3 months, and reduction to the rank of private. His sentence was approved and duly executed on 27 January 1972 with confinement to be served at the Post Stockade, Fort Dix, NJ. 6. A DD Form 4458 (Charge Sheet), dated 11 August 1972, shows when the applicant was assigned to the Personnel Control Facility, Fort Dix, court-martial charges were preferred against him for being AWOL from on or about 14 March to August 1972. 7. His record is void of documentation showing he was notified, consulted with legal counsel, and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. However, it is presumed he did so as his intermediate commander forwarded a request for the above action to the separation authority on 20 September 1972. 8. The separation authority approved the applicant's request for discharge on 28 September 1972 and directed his reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate. 9. The applicant was discharged on 27 November 1972 in a trainee status. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows: * he completed 10 months and 19 days of total active service * 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 * his service was characterized as under conditions other than honorable * he had lost time from 31 October through 1 November 1970, 21 through 27 January 1971, 31 January through 13 September 1971, 22 September through 29 November 1971, and 30 November 1971 through 6 March 1972 (a total of 551 days) 10. The applicant provides a letter, dated 8 December 2015, confirming he was employed as a custodian by the U.S. Postal Service for more than 16 years until November 2015. He also provides a letter of support, dated 10 December 2015, attesting that he is kind, honest, faithful, and a good worker. 11. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. 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. c. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service. An under conditions other than honorable characterization of service required reduction to the lowest enlisted grade. DISCUSSION: 1. The applicant's request for an upgrade of his discharge under conditions other than honorable was carefully considered. 2. The applicant's records show he was AWOL on five separate occasions for a total of 551 days of lost time prior to completing advanced individual training. Court-martial charges were preferred against him for offenses punishable under the UCMJ with a punitive discharge. Although his records do not contain his request for discharge, based on subsequent documents from his chain of command, it is presumed that he voluntarily requested discharge in order to avoid trial by court-martial. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 4. He contends it has been more than 45 years since he was discharged, he has raised a family, led a good trouble-free life, and he would like his discharge to be upgraded. The Board recognizes and applauds his subsequent successes; however, based on his record of indiscipline during the period of service in question, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001794 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001794 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2