BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160003669 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 September 2017 DOCKET NUMBER: AR20160003669 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 September 2017 DOCKET NUMBER: AR20160003669 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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge. 2. The applicant states that he received a letter from the Department of Veterans Affairs (VA), dated 6 October 1976. The letter stated that his discharge on 13 April 1971 was found to have been issued under dishonorable conditions. a. He states he initially enlisted in the Regular Army (RA) on 13 April 1971 and served at Fort Hood, TX. He reenlisted on 11 February1972, was assigned overseas in Germany from May or June 1972 until June 1974, and promoted to specialist four. b. He was then assigned to 2nd Battalion, 2nd Field Artillery, Fort Sill, OK. This allowed him to be reunited with his wife and things were going well. Then, during a weekend visit to his wife's parent's house in June 1975 at Fort Worth, TX, his wife's parents decided to take their son from them. He called the local police, but they did not provide any assistance. The following Monday he called his commander and explained the situation to him. The commander told him to do what was necessary to resolve the situation with his son. c. He states that he retained an attorney, met with him on 19 June 1975 to start the necessary paperwork, and the matter turned into a 2-year court battle. First, the Tarrant County Juvenile Department had to appoint a Managing Conservator who was a resident of the county, so he asked his parents to help out. He and his wife were then told that they had to establish residency in the county for home inspection purposes. He called his commander about the situation. The commander informed him that he would talk to the battalion commander and then get back with him. He states the commander told him, although he was doing what the court ordered, he was still in an absent without leave (AWOL) status. Since he had less than one (1) year remaining on his active duty service obligation, he should turn himself in and get a general, under honorable conditions discharge. d. When he got the chance, he turned himself in to the Fort Worth police at the end of February 1976. He was sent to Dallas and then to Fort Hood, TX. A Judge Advocate General (JAG) officer was appointed as his counsel and the applicant told him his story. The JAG officer told him that since he already had an honorable discharge, it would not change. He also advised the applicant that he could request a discharge (UOTHC) in lieu of trial by court-martial. e. The applicant states he recently met with a representative of the Disabled American Veterans (DAV) who reviewed the VA letter. The DAV representative advised him that he could submit an application requesting a change to his UOTHC discharge. f. He concludes by stating that he was a young father at the time, he was trying to do the right thing and comply with court orders; however, the U.S. Army did not agree. 3. The applicant provides copies of his two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty), a VA letter, and court documents. 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 RA on 13 April 1971 for a period of 3 years. a. Upon completion of training he was awarded military occupational specialty 13B (Field Artillery, Basic). b. He was promoted to the rank of private first class/pay grade E-3 on 7 October 1971. c. He was assigned to Battery C, 1st Battalion, 3rd Artillery, 2nd Armored Division, Fort Hood, TX, from October 1971 through June 1972. 3. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty this period on 13 April 1971 and he was honorably discharged on 10 February 1972 to reenlist in the RA. He completed 9 months and 28 days of net active service during this period. 4. The applicant reenlisted in the RA on 11 February 1972 for a period of 4 years. At the time he was 18 years of age. a. He was assigned overseas and served in Germany from 11 July 1972 through 17 August 1974 and he was promoted to the rank of specialist four (SP4)/pay grade E-4 on 1 June 1973. b. He was assigned to the 2nd Battalion, 2nd Field Artillery, Fort Sill, OK, on 30 September 1974. 5. The applicant received nonjudicial punishment (NJP) for violation of the Uniform Code of Military (UCMJ) on six (6) occasions, as follows: * on 16 March 1972 – for being AWOL from 14 to 15 March 1972 * on 12 April 1972 – for being AWOL from 1 to 5 April 1972 * on 26 October 1973 – for being AWOL from 23 to 24 October 1973 * on 11 November 1974 – for failing to be at his appointed place of duty on 31 October 1974 * on 21 November 1974 – for failing to be at his appointed place of duty on 19 November 1974; he was reduced to private (E-2) * on 3 February 1975 – for failing to be at his appointed place of duty on 27 January 1975 (two specifications) 6. On 11 December 1974, a bar to reenlistment was imposed on the applicant. 7. United States Department of Justice, Federal Bureau of Investigation report, dated 24 January 1976, shows the applicant was stopped on a routine traffic check by the Fort Worth Police Department on the evening of 23 January 1976. A routine check with the National Crime Information Center revealed the applicant was in a deserter status from the U.S. Army. He was taken into custody and held for return to military control. (He was returned to military control on 29 January 1976.) 8. Court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being absent from his organization from 15 June 1975 until 24 January 1976. 9. The applicant consulted with legal counsel. He was informed of the charge against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged UOTHC and furnished an Undesirable Discharge Certificate. c. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws d. He was also advised that he could submit statements in his own behalf. He submitted a brief statement, as follows: "Had family problems from my mother-in-law. She was trying to take our son away from us and we had to have a big court battle over it." e. The applicant and his counsel placed their signatures on the document. 10. The chain of command recommended approval of the applicant's request for discharge for the good of the service with an UOTHC characterization of service. 11. On 12 February 1976, the separation authority approved the applicant's request for discharge for the good of the service, reduced him to the lowest enlisted grade (E-1), and directed that he be furnished an Undesirable Discharge Certificate. 12. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he entered active duty this period on 11 February 1972 and he was discharged on 3 March 1976 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with Separation Program Designator Code "KFS" (For the Good of the Service in Lieu of Trial by Court-Martial). He had completed 3 years, 5 months, and 14 days of net active service during this period and he had a total of 217 days of time lost due to AWOL. His service was characterized as UOTHC and he was issued an Undesirable Discharge Certificate. 13. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 14. In support of his application the applicant provides the following documents: a. Court documents related to proceedings in the Domestic Relations Court, Tarrant County, Texas, beginning on 19 June 1975, that show the applicant's spouse (Cathy G. L___) as the petitioner and her parents (grandparents of her child) as the respondents. The matter involved possession and custody of the child of the petitioner and the applicant. The documents show the applicant and the petitioner were remarried sometime after 6 February 1975. The court documents, in pertinent part, show: * On 20 June 1975, a Writ of Habeas Corpus was issued for the grandparents to appear in court with the child on 23 June 1975. * On 4 August 1975, the applicant and his spouse requested a Writ of Attachment for the immediate delivery of the child (who was in the possession of the grandparents) to the possession of the Tarrant County Juvenile Department or other temporary Managing Conservator; the judge approved the request. * On 5 August 1975, the judge appointed the applicant and his spouse as Possessory Conservator (for reasonable visitation) of the child. * On 19 January 1976, the court ordered the Juvenile Probation Officer to take physical custody of the child pending a final hearing. * On 20 January 1976, the grandparents of the child filed a motion for contempt against the applicant and his spouse in the suit affecting the parent-child relationship. * On 2 March 1976, the judge wrote, in pertinent part: "The parents and grandparents of [child] are among the most cantankerous and unreasonable people I have ever had in my court." * On 10 March 1976, the court appointed the grandparents as Managing Conservator of the child. * On 18 August 1976, on behalf of the applicant and his spouse, counsel requested information regarding the coming visitation schedule. * On 3 December 1976, the grandparents filed an Original Petition to Terminate Parent-Child Relationship (pertaining to the applicant and his spouse's two children). * On 21 December 1976, the applicant and his spouse denied the allegations presented in the Original Petition to Terminate Parent-Child Relationship. * On 22 December 1976, in an Affidavit of Relinquishment of Parental Right, the applicant's spouse designated her parents as qualified persons suitable to serve as Managing Conservators of her children, if her rights were terminated. * On 17 February 1977, the court appointed and ordered the applicant's spouse's parent's as the Managing Conservator of the children. b. A VA letter, dated 6 October 1976, that shows an adjudication officer notified the applicant that, "The character of discharge determination of which you were advised in our letter of 16 July 1976, has been made. The determination is unfavorable. Your discharge from military service on 13 April 1971 [sic] was found to have been issued under dishonorable conditions." (1) He was advised that the period of service upon which that discharge was based does not qualify him for the benefit he applied for (or any other gratuitous benefit). He was informed of his right to appeal the decision, if he believed the decision to be incorrect. (2) He was also informed that he could apply to the Army Review Boards Agency for review of his discharge. 15. An Internet search revealed that the distance between Fort Sill, OK, and Fort Worth, TX, is approximately 166 miles and the driving time is less than 3 hours. REFERENCES: AR 635-200, in effect at the time, 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 UOTHC discharge is normally considered appropriate. b. Chapter 3, paragraph 3-7a, provides 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. c. Chapter 3, paragraph 3-7b, provides 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. DISCUSSION: 1. The applicant contends that his UOTHC discharge should be upgraded because he was a young father at the time, he was dealing with a lengthy court battle regarding the custody of his son, and he served honorably prior to the period of service under review. 2. The DD Form 214 covering the period of active duty from 13 April 1971 through 10 February 1972 documents the applicant's honorable character of service during that period of service. 3. The evidence of record shows the applicant reenlisted in the RA when he was 18 years of age. He had already successfully completed training, was awarded MOS 13B, attained the rank of SP4 (E-4), and served honorably during his initial period of enlistment. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 4. The applicant's prolonged court battle regarding the custody of his son is noted, as is the applicant's contention that he initially contacted his commander (telephonically) after being away for a weekend and that the commander told him to do what was necessary to resolve the situation regarding his son. However, the comment by the commander does not suggest that he authorized/granted the applicant a pass or leave at the time. Moreover, it is unreasonable to conclude that such a comment authorized the applicant to remain AWOL from his unit for more than seven (7) months. 5. The applicant's request for discharge UP AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 6. The evidence of record shows that court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL from his unit from 15 June 1975 to 24 January 1976; a period in excess of 7 months. a. The evidence of record shows the applicant was apprehended by civil authorities, which is contrary to his contention to this Board that he turned himself in to the Fort Worth police. b. Prior to his prolonged period of AWOL, he had received NJP on six (6) occasions for various acts of misconduct. c. He elected to request a discharge for the good of the service in lieu of trial by court-martial. d. He was reduced to the lowest enlisted grade (E-1) and he failed to complete his 4-year active duty service obligation. e. The entire chain of command recommended his service be characterized as UOTHC. f. Records show the period of service under review was characterized as UOTHC. g. The evidence of record shows an UOTHC discharge is normally considered appropriate for Soldiers discharged UP AR 635-200, chapter 10. 7. The separation authority determined the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel nor was it satisfactory. 8. The applicant is advised that the letters issued to him by the VA that do not accurately reflect his discharge date(s) and/or the characterization(s) of his service is not a matter for review by this Board. However, the applicant may appeal any such VA letter/document to the VA. He is also advised that he should provide certified copies of both of his DD Forms 214 in support of any appeal he submits to the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003669 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003669 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2