BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160001993 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: 25 May 2017 DOCKET NUMBER: AR20160001993 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: 25 May 2017 DOCKET NUMBER: AR20160001993 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, in effect, his discharge was not appropriate because he had already served his punishment prior to being separated from the military. He contends that, at the time, he was young and in love with his pregnant girlfriend. He went absent without leave (AWOL) to visit her which resulted in him being incarcerated for three months at Fort Riley, KS. He further contends that at the end of his sentence, he was given a choice to stay on active duty or go home. He elected to go home and he was never counseled on the ramifications of his decision. He did not realize how the character of his service would affect his ability to get a job or take advantage of other veteran’s benefits. 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. On 10 January 1973, at age 18, he enlisted in the Regular Army. The highest rank/pay grade he attained was private/E-2. 3. Special Court-Martial Order Number 218, issued by Headquarters Command, U.S. Army Infantry Center, Fort Benning, GA, dated 7 August 1973, shows he was convicted on 26 July 1973 of being AWOL from 11 April to 23 June 1973. He was sentenced to confinement at hard labor for 85 days and a forfeiture of $35.00 pay for three months. 4. The applicant’s DA Form 2-1 (Personnel Qualification Record) shows the applicant had the following additional lost time: * Confinement from 25 June through 3 October 1973 * AWOL from 13 February through 14 June 1974 * AWOL from 8 August 1974 to 9 January 1975 * AWOL from 10 January to 20 June 1975, after his normal expiration term of service (ETS) date 5. His record contains a Defense Counsel Questionnaire and Sworn Statement, dated 3 July 1975, which indicates the applicant provided a statement identifying the reason for all his unauthorized absences as “Family problems the Army couldn’t understand.” 6. On 10 July 1975, court-martial charges were preferred against him for being AWOL from 8 August 1974 to 21 June 1975. 7. On 15 July 1975, after consulting with counsel, he 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. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. He indicated he had not been subjected to coercion whatsoever by any person and he made the request of his own free will. He elected to submit a statement in his own behalf; however, a statement was not attached to the separation packet. 8. In his request for discharge the applicant acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. He understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge. 9. On 21 July 1975, the separation authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge. 10. On 18 August 1975, he was discharged accordingly. His DD Form 214 shows he completed a total of 1 year, 2 months, and 22 days of creditable active military service and he had 266 days of lost time prior to ETS and 239 subsequent to his normal ETS date. 11. There is no evidence in his record that indicates he petitioned 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 provides the authorities and procedures for separation of enlisted personnel. a. Chapter 10 provides that the applicant must have indicated he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. He must have acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. 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 requests an upgrade of his under other than honorable conditions discharge to a general discharge. 2. The applicant’s could have been tried by a court-martial and sentenced to a punitive discharge under the UCMJ for his extensive AWOL offense. As an alternative, he requested discharge under the provisions of Army Regulation 635-200, chapter 10. These type of discharges are voluntary requests for discharge in lieu of trial by court-martial. At the time he acknowledged that he was guilty of the charge, or a lesser offense, and he acknowledged that he could be deprived of his rights and benefits as a veteran. 3. His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. His characterization of service was commensurate with the reason for his discharge. 4. The applicant’s age at the time of enlistment is noted. However, many Soldiers enlisted at age 18 and went on to complete their service obligations and receive honorable discharges. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001993 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001993 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2