ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 March 2019 DOCKET NUMBER: AR20160015633 APPLICANT REQUESTS: His undesirable discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant contends that he was told his discharge would be automatically upgraded after one year. 3. The applicant enlisted in the Regular Army on 10 May 1966. 4. The applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 15 March 1967, for failing to go to his place of duty * on 8 June 1967, for being absent without leave (AWOL) on or about 3 June 1967 * on 7 March 1968, for dereliction of duty * on 15 January 1968, for being AWOL from on or about 8 January through on or about 14 January 1969 5. Before a special court-martial on 23 October 1967, the applicant was convicted of: breaking restriction; carrying a concealed weapon; use, with intent to deceive, an armed forces liberty pass; and assault and battery on a female foreign national. 6. The applicant was AWOL from on or about 8 April 1969 through on or about 8 January 1970. Court-martial charges were preferred against him on 13 January 1970 for this period of AWOL. 7. The applicant consulted with counsel on 14 April 1970. a. He 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. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 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 his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 8. The general court-martial convening authority approved the applicant's request for discharge on 13 May 1970, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trail by court-martial. He directed the applicant be reduced to the lowest enlisted pay grade. 9. The applicant was discharged on 21 May 1970. His DD Form 214 shows: * he was credited with 3 years and 7 days of creditable service * his service was characterized as under other than honorable conditions (UOTHC) * he was discharged under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial * he had 372 days of lost time 10. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested and was discharged under the provisions of Army Regulation 635-200, chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. Army Regulation 635-200 provides the authority for separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of honorable, general, and UOTHC Certificates. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board determined that based upon the multiple events of misconduct and the seriousness of some, the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provides, in pertinent part, 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 is authorized, a discharge UOTHC is normally considered appropriate. d. There is not now nor has there ever been a provision for an automatic upgrade of a Chapter 10 discharge after one year. ABCMR Record of Proceedings (cont) AR20160015633 3 1