IN THE CASE OF: BOARD DATE: 22 May 2018 DOCKET NUMBER: AR20160008028 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 22 May 2018 DOCKET NUMBER: AR20160008028 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 an upgrade of his under other than honorable conditions discharge. 2. The applicant states in a letter, dated 13 September 1979, the Department of Veterans Affairs (VA) determined that his service to be under honorable conditions, so he would like his actual discharge to reflect the same, based on their evidence. 3. The applicant provides: * Letter, dated 13 September 1979, from the VA * Under Other Than Honorable Conditions Discharge Certificate * DD Form 214 (Report of Separation from Active Duty), dated 29 May 1979 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 (RA) on 6 August 1970 and he held military occupational specialty 63C (Track Vehicle Mechanic). He was honorably discharged on 8 June 1973 for immediate reenlistment. He completed 2 years, 10 months, and 2 days of active service this period. 3. He reenlisted in the RA on 8 June 1973. He was honorably discharged on 6 April 1978 for immediate reenlistment. He was issued a DD Form 214 (Report of Separation from Active Duty) that credited him with: * 4 years, 9 months, and 29 days of active service during this period * 2 years, 10 months, and 2 days of prior active service 4. He reenlisted in the RA on 7 April 1978. He was assigned to Aberdeen Proving Ground with duty at Fort Pickett, VA. 5. On 8 January 1979 he departed his unit in an absent without leave (AWOL) status, and on 15 January 1979 he returned to military control. 6. On 27 February 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for two instances of willfully disobeying a lawful order. 7. On 1 March 1979, he again departed his unit in an AWOL status, and on the same date he was dropped from the rolls as a deserter. He was apprehended by civil authorities at Boone County, WV, on 3 April 1979 and returned to military control. 8. On 16 April 1979, court-martial charges were preferred against him for one specification of being AWOL from 1 March to 3 April 1979. 9. The applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for offenses punishable under the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him. Following consultation with legal counsel, he requested 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 indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood if his discharge request was approved he could be deprived of many or all Army benefits, * he understood he could be ineligible for many or all benefits administered by the VA * he understood he could be deprived of his rights and benefits as a veteran under both Federal and state laws * under no circumstances did he desire further rehabilitation and he had no desire to perform further military service * he elected to submit a statement on his own behalf (statement is too faded and not legible/readable) 10. His immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. 11. On 7 May 1979, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade. On 29 May 1979, the applicant was discharged accordingly. 12. The DD Form 214 the applicant was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He was issued an Under Other Than Honorable Conditions Discharge Certificate. He completed 1 year and 14 days of active service during this period with 40 days of lost time and 43 days of excess leave. He was also credited with 7 years, 8 months, and 1 day of prior active service. 13. There is no indication in his records he petitioned the Army Discharge Review Board for a review of his discharge action within that board's 15-year statute of limitations. 14. He provides a letter, dated 13 September 1978, informing him that the VA considers his discharge on 29 May 1979 to have been under honorable conditions and he was eligible for VA benefits. REFERENCE: AR 635-200 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 may be authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. 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's record shows he was charged with the commission of an offense 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. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. Based on his record of indiscipline, the separation authority determined that the applicant's service during his final enlistment did not meet the standards of acceptable conduct and performance of duty for Army personnel or rise to the level required for an honorable or a general discharge. 4. The VA is independent of the Department of the Army and has no authority to determine the characterization of service that appears on a military record. The VA, however, has its own rules regarding eligibility for benefits. Generally, in order to receive VA benefits and services, the veteran’s character of discharge or service must be under other than dishonorable conditions. A determination by the VA regarding VA benefits has no bearing on the characterization of service that appears on a Soldier's DD Form 214. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008028 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008028 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2