IN THE CASE OF: BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160004139 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 IN THE CASE OF: BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160004139 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. IN THE CASE OF: BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160004139 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 the characterization of service on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be changed from under conditions other than honorable to a general (under honorable conditions). 2. The applicant states his immaturity and lack of education during his period of service caused him to make bad decisions and that he tried his very best under the circumstances. 3. The applicant provides a DD Form 214 and three character reference letters on VA Form 21-4138 (Statement in Support of Claim). 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 was born in November 1951. He was inducted into the Army of the United States at 19 years and 5 months of age on 27 April 1971. He held military occupational specialty 13A (Field Artillery Basic). He was assigned to Fort Jackson, SC, for initial training on or about 10 May 1971. 3. On or about 1 June 1971, he departed his Fort Jackson unit in an absent without leave (AWOL) status, and on 30 June 1971, he was dropped from the rolls (DFR). On 9 August 1971, he returned to military control. 4. Summary Court-Martial Order Number 84, dated 18 August 1971, shows he was found guilty of one specification of AWOL from 1 June 1971 to 9 August 1971. 5. Following initial training he was assigned to Fort Sill, OK, for advanced individual training. He arrived on or about 1 October 1971, and on 2 November 1971, he departed his Fort Sill unit in an AWOL status. On 1 December 1971, he was DFR as a deserter. On 9 May 1972, he surrendered to military control at Fort Jackson. 6. On 10 May 1972, court-martial charges were preferred against the applicant for one specification of AWOL from on or about 2 November 1971 to on or about 9 May 1972. 7. On 11 May 1972, the applicant was advised of the basis for the contemplated trial by court-martial for an offense punishable under conditions other than honorable, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. The applicant declined the opportunity to consult with counsel. He then requested a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood if the 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he understood if the discharge request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he elected not to submit a statement on his own behalf 8. On 18 May 1972, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10 and directed issuance of an Undesirable Discharge Certificate. On 22 May 1972, the applicant was discharged accordingly. 9. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10 with an under conditions other than honorable characterization of service. His DD Form 214 also shows he completed 4 months, and 9 days of active creditable service with lost time from 1 June 1971 to 7 August 1971 and 2 November 1971 to 8 May 1972. 10. 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. 11. The applicant provided three character reference letters from friends and acquaintances who describe him as a man of loyalty and integrity who is dependable and dedicated. REFERENCE: AR 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d states that 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 1-9e states 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. 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 applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, 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. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 2. The applicant was 19 years and 5 months of age at the time of his enlistment. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available records showing that his acts of indiscipline were the result of his age. 3. His available service record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. 4. The characterization of his service was commensurate with his record of indiscipline. The separation authority determined his service did not rise to the level required for an honorable or 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) AR20160004139 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004139 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2