BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160004159 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: 14 September 2017 DOCKET NUMBER: AR20160004159 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: 14 September 2017 DOCKET NUMBER: AR20160004159 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 under honorable conditions (general) discharge. He further requests a personal hearing before the Board. 2. The applicant did not provide a statement in support of his request. 3. The applicant did not provide additional evidence in support of his request. 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 30 November 1972. His record shows he did not complete his initial entry training. 3. A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 2 March 1973, shows the applicant received non-judicial punishment (NJP) for violating Article 86 of the UCMJ, specifically for being absent without leave from on or about 15 February 1973 through on or about 2 March 1973. 4. A DA Form 2627-1, dated 26 April 1973, shows the applicant received NJP for violating Article 86 of the UCMJ, specifically for being absent without leave from on or about 19 April 1973 through on or about 24 April 1973. 5. A DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) – Record of Court-Martial Conviction) shows the applicant was convicted by special court-martial of violating Article 86 of the UCMJ, specifically for being AWOL from on or about 4 June 1973 through on or about 3 July 1973. The court sentenced him to forfeit $35.00 for one month. The sentenced was adjudged on 25 July 1973 and approved on 27 July 1973. 7. A DD Form 458 (Charge Sheet), dated 28 November 1973, shows court-martial charges were preferred against the applicant for being AWOL from on or about 10 September 1973 through on or about 21 November 1973. 8. The applicant submitted a statement on 10 December 1973, wherein he notified his chain of command of his intent to request discharge from the Army for the good of the service. He stated: a. His mother was 55 years old, and his father was deceased. He felt it was his responsibility to take his father's place and provide for his mother and younger siblings; he thought enlisting into the Army would fulfill that responsibility. He learned his Army salary was insufficient and that he needed to be closer to home to help supervise things. b. He added the responsibility of a wife to support. His being in the Army put a strain on his marriage. He could not afford to have his wife with him, so his wife had to face many financial problems alone. He was afraid his wife would leave him if the long separations from military service continued. c. The Army had not worked out for him the way he meant for it to. He never completed AIT because of long hospitalizations. He felt he had no choice but to go AWOL. His family had no food on the table, and the only way they could have food was if he put it there. 9. The applicant consulted with legal counsel on 17 December 1973 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. a. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. b. In his request for discharge, the applicant indicated he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable. He indicated he had been advised as to the possible effect of an under other than honorable conditions discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 10. On 17 December 1973, the applicant's company commander recommended approval of his request for discharge for the good of the service, and recommended he receive an Undesirable Discharge Certificate. On 10 January 1974, his battalion commander recommended approval of the request. 11. A DA Form 2627-1, dated 15 January 1974, shows the applicant received NJP for two specifications of violating Article 86 of the UCMJ; specifically, for being absent without leave from on or about 26 December 1973 through on or about 8 January 1974 and from on or about 13 January 1974 through on or about 14 January 1974. 12. The separation authority approved the applicant's request for separation in lieu of court-martial on 18 January 1974, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be issued an Undesirable Discharge Certificate. 13. The applicant was discharged on 25 January 1974. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his character of service was under other than honorable conditions. He served for 9 months and 12 days and accumulated 134 days of time lost. 14. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A discharge under other than honorable conditions would normally be furnished an individual who was discharged for the good of the service. DISCUSSION: 1. After completing basic training, the applicant was repeatedly reported AWOL during AIT. 2. Upon his return to military control, the applicant provided the separation authority a statement indicating his intent to request separation, as he needed to provide for his family and went AWOL to be closer to home. He contended he could not afford to take care of his family on an Army salary, and Army service was putting a strain on his marriage. 3. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. 4. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant's voluntary request for discharge to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 5. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004159 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2