BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160004248 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: 21 November 2017 DOCKET NUMBER: AR20160004248 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: 21 November 2017 DOCKET NUMBER: AR20160004248 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 he was suffering intense family trauma due to the death of his mother. He was led to believe that he would never be assigned overseas due to his family situation. Shortly after military training he was assigned to Germany. When his mother passed away he became mentally stressed and this led to him going absent without leave (AWOL). 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 12 February 1975 for the U.S. Army Continental United States (CONUS) unit of choice enlistment option. He originally enlisted to be trained in military occupational specialty (MOS) 76W (Petroleum Supply Specialist). 3. On 12 March 1975, he signed a combat arms volunteer statement waiving training as a 76W and accepting combat arms training in either Infantry, Armor or Field Artillery. On that date he also signed DA Form 3340 (Request for Regular Army Reenlistment or Extension) and DA Form 3286 (Statements for Enlistment) increasing his initial service requirement from 3 years to 4 years and accepting an initial duty assignment at Fort Riley, KS. He acknowledged his understanding: * of potential overseas assignments by signing DD Form 3286 * that if his unit was deployed or relocated in CONUS, or to an overseas area, he would be assigned or remain assigned to the unit for the remaining time specified in the option or for the time specified by Army policy in effect at that time 4. On or about 6 June 1975, he completed initial training in MOS 11B (Light Weapons Infantryman). Following initial training, he was assigned to Fort Riley, KS. He arrived on or about 25 June 1975. 5. On 23 September 1975, he was reported AWOL from leave status at his Fort Riley unit and remained AWOL until 25 September 1975. 6. On 29 September 1975, at Fort Riley, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the above period of AWOL. 7. Item 5 (Oversea Service) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he served in Germany from 1 October 1975 to 1 November 1975. 8. On 30 October 1975, he accepted NJP under Article 15, UCMJ, for leaving his appointed place of duty, in Germany, without authority on 21 October 1975. 9. On 26 November 1975, he departed his unit on excess leave. However, he failed to return from leave. Accordingly, on 20 January 1976, he was placed in an AWOL status. 10. On 31 January 1976, he was apprehended by military authorities in San Antonio, TX. He was placed in military confinement and issued orders to report back to his unit. 11. On 4 February 1976, he was dropped from rolls (DFR) after having failed to report to his unit by 2400 hours on 3 February 1976, by authority of Letter Orders Number 2-2, issued by military official in San Antonio. 12. On 23 February 1976, he was administratively attached to the Personnel Control Facility (PCF) at Fort Hood, TX pending AWOL determination and DFR status from Fort Riley, after having been apprehended by civil authorities on 22 February 1976 in San Antonio. 13. On 2 March 1976, he was returned to military control. 14. On 5 March 1976, DD Form 458 (Charge Sheet) was initiated showing that the PCF commander was preferring charges against the applicant for three specifications of AWOL from 20 January to 3 February 1976, 4 to 22 February 1976, and 26 February to 2 March 1976. 15. On 10 March 1976, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he acknowledged: * he was making this decision freely and he was guilty of the charges against him * he realized he could receive an under other than honorable conditions character of service; he did not desire any further rehabilitation * he was afforded the opportunity to consult with legal and advised of his rights under the UCMJ * this agreement pertained only to his period of AWOL * he knowingly, willingly, and voluntarily declared he was AWOL from on or about 20 January through 3 February 1976, 4 February through 22 February 1976, and 26 February through 2 March 1976 * he could be deprived of many or all Army benefits * 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 16. The applicant provided a statement on his behalf, stating he applied for Christmas leave early in order to go home and see his mother who had cancer. His leave request was denied, and on 24 November 1975, his mother passed away. He was sent home on emergency leave, and while there he started having trouble. He was able to get excess leave and things got rougher for him. He decided to get out of the service in order to get his family together. The unit did not believe that his mother had cancer and he had applied for a compassionate reassignment. He had paperwork from the physician, family, and the Red Cross to verify her condition and the unit still didn’t believe him. 17. On 11 March 1976, the PCF commander recommended an undesirable discharge and on 15 March 1976, the battalion commander concurred with the recommendation for an undesirable discharge. 18. On 18 March 1976, 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. 19. On 30 March 1976, the applicant was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year and 10 days of active creditable service with lost time from 23 to 25 September 1975, 20 to 30 January 1976, 4 to 22 February 1976, and 26 February to 1 March 1976. 20. 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: AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a 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 3-7b 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 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. With respect to his argument that he was led to believe he would not be assigned overseas due to his mother’s health, and shortly after completion of initial training he was assigned to a unit in Germany, the applicant did acknowledge understanding of potential overseas assignments by signing DD Form 3286. He acknowledged that if his unit was deployed or relocated in CONUS, or to an overseas area, he would be assigned or remain assigned to the unit for the remaining time specified in the option or for the time specified by Army policy in effect at that time. 3. In addition, he enlisted for station of choice and selected Fort Riley, KS, as his duty station following initial training, and he was stationed there following initial training. Although his records are void of permanent change of station orders it is presumed he was issued reassignment orders and reported to Germany around 1 October 1975. 4. 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. His character of service 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) AR20160004248 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004248 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2