BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160002762 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: 17 August 2017 DOCKET NUMBER: AR20160002762 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: 17 August 2017 DOCKET NUMBER: AR20160002762 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 his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states at the time he was discharged the Assistant Adjutant General (AG) informed him he would receive a general discharge. They were rushing a lot of people out and the paperwork was being rushed at the time. He further notes that he would have taken a different direction in his life, and that’s why he asked a few times to ensure if this was what he really wanted. He states he was talked into it by the AG so that he could move on to the next person. 3. The applicant provides no documents in support of his case. 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 26 April 1974. He held military occupational specialty 11C (Indirect Fire Infantryman). Following initial training, he was assigned to Fort Lewis, WA. He arrived on or about 9 September 1974. 3. On 7 November 1974, he departed his Fort Lewis unit in an absent without leave (AWOL) status, and on 25 November 1974, he was dropped from the rolls (DFR) as a deserter. He returned to military control on 8 December 1974. 4. On 26 December 1974, the applicant was punished under Article 15, Uniform Code of Military Justice for the above period of AWOL and for disobeying a lawful order. 5. On 3 January 1975, he departed his Fort Lewis unit in an AWOL status, and on 2 February 1975, he was DFR. 6. On 26 April 1975, he was apprehended by the Monrovia, CA, Police Department and returned to military control. 7. On 2 May 1975, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. In doing so, he acknowledged he had not been coerced with respect to the request for discharge. He also acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration. He waived his rights and elected to submit a statement in his own behalf. 8. On 6 May 1975, a Charge Sheet (DD form 458) was prepared by the Commander, Headquarters and Headquarters Command, United States Army Training Center, Fort Ord, CA. The applicant was charged with being AWOL from on or about 3 January to 26 April 1975. 9. On 6 May 1975, the applicant provided a statement on his behalf, stating he joined the Army because he was getting hassled by civilian authorities. In addition, he wanted to be released from the military for his benefit and no longer wanted to deal with military rules and regulations. Furthermore, the applicant also stated if he was not separated then he would go AWOL again and was willing to accept the undesirable discharge and the ramifications associated with that acceptance. 10. His chain of command concurred with the recommendation for an undesirable discharge. 11. On 24 June 1975, the separation authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued. 12. On 21 July 1975, he was discharged under other than honorable conditions. His DD Form 214 (Report of Separation from Active Duty) shows he completed 10 months and 24 days of active creditable service with lost time from 7 to 25 November 1974 and 3 January to 26 April 1975. It also indicates: * he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar * the authority for separation was Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial) 13. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCE: 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 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 at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The available evidence shows the applicant was discharged in lieu of trial by court-martial, under the provisions of AR 635-200, chapter 10. Discharges under this chapter are based on a voluntary request. He consulted with counsel and acknowledged he had not been coerced with respect to the request for discharge. 2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his 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) AR20160002762 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002762 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2