IN THE CASE OF: BOARD DATE: 12 June 2018 DOCKET NUMBER: AR20160009793 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: 12 June 2018 DOCKET NUMBER: AR20160009793 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 discharge. He also requests a personal hearing before the Board. 2. The applicant states he would like to change his discharge. He finished jump school and amphibious tank training at Fort Knox, KY, and he was a gunner. He wanted out because he was not sent to Vietnam. He wanted to go to Vietnam but he was turned down by his officer. He also states: * he completed airborne training at Fort Bragg, NC, jumping out of C-130 and C-140 aircraft, and he was assigned to the 82nd Airborne Division * he received his 3 weeks of airborne training and/or 5 jumps conducted at Fort Bragg with the 82nd Airborne; he even had his airborne picture on his helmet from Fort Bragg * he also completed amphibious tank training and held military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist) * he underwent 120 mm tank training and .50 caliber machine gun training, and he wanted to go to war but he was turned down; he was really disappointed at not being given the chance to defend our country 3. The applicant provides no additional evidence. 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 21 July 1971 for a 3-year term. He completed basic combat training at Fort Leonard Wood, MO, and advanced individual training at Fort Knox, KY. He held MOS 19D. 3. After MOS training, he completed the 3-week Basic Airborne Course at Fort Benning, GA, from around 14 January 1972 to around 4 February 1972, and following completion of this training, he was reassigned to the 1st Squadron (Airborne), 17th Cavalry Regiment, Fort Bragg, on or about 11 February 1972. 4. Although no Article 15 is filed in his record, it appears he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on or about 8 September 1971 for being absent without leave (AWOL) from 6 to 7 September 1971. 5. On 13 March 1972, he departed his unit in an AWOL status, and on 12 April 1972, he was dropped from the rolls as a deserter. He ultimately returned to military control on 13 July 1972. 6. On 21 July 1972, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 13 March 1972 to on or about 14 July 1972. 7. On 24 July 1972, the applicant consulted with legal counsel 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 of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person; he was advised of the implications that were attached to his request * he acknowledged that he understood if his discharge request was accepted, he might be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate * he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf (not contained in the available records) 8. The applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an undesirable discharge. The immediate commander indicated that his personal evaluation of the applicant led him to believe the applicant would never be a satisfactory Soldier and that his retention served no useful purpose. 9. On 3 August 1972, the applicant again departed his unit in an AWOL status, and on 4 August 1972, Headquarters, 1st Infantry Division, Fort Riley, KS, issued Special Orders Number 217 ordering the applicant's discharge from the Army effective 7 August 1972, in accordance with chapter 10 of AR 635-200. 10. On 7 August 1972, Headquarters, 1st Infantry Division, Fort Riley, also issued a Constructive Notice of Discharge pertaining to the applicant, affecting his discharge effective 7 August 1972, because he had been AWOL. 11. The applicant was discharged on 7 August 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. It also shows: * he completed 8 months and 7 days of active service and he had 130 days of lost time * he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle (M-16) and Machine Gun (M-60) Bars, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Parachutist Badge 12. There is no indication he applied to the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policy for administrative 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states 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 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. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. DISCUSSION: 1. The evidence of record and independent evidence provided by the applicant appear to be sufficient to render a fair and equitable decision at this time. A personal appearance hearing does not appear to be necessary to serve the interest of equity and justice in this case. 2. The applicant's service record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 635-200 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. 3. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His administrative separation was accomplished in compliance with applicable regulations at the time. Based on his record of indiscipline, the separation authority determined the applicant's service did not rise to the level required for an honorable or a general discharge. 4. The applicant's service record documents his completion of the Airborne Course as well as his assignment to Fort Bragg, NC. However, his discharge was clearly due to his choice to be separated in lieu of trial by court-martial after he had been AWOL. 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) AR20160009793 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009793 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2