IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20160016833 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. IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20160016833 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :RCJ :QAS :JTM DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20160016833 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 undesirable discharge to a general discharge. 2. The applicant states he was not a deserter. He felt the charges against him were not substantiated. He believes he was taken advantage of and lied to in order for him to agree to a guilty plea on all charges. He believes the 3 years he spent in the Army should count for something. He has turned his life around by taking classes and joining a group. He was just diagnosed with cancer and is not given very long to live. He would like to enjoy some Department of Veterans Affairs (VA) benefits that he earned despite the plea deal he agreed to. 3. The applicant provides National Archives and Records Administration (NA) Form 13038 (Certification of Military Service). 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 July 1971 and he held military occupational specialty 76V (Equipment Storage Specialist). He was assigned to the 183rd Maintenance Company, Fort Carson, CO. 3. On 15 December 1972, while holding the noncommissioned officer rank of sergeant/E-5, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a vehicle in a reckless and wanton manner while drunk and for resisting apprehension by military police. His punishment consisted of a reduction to pay grade E-4 (suspended), a forfeiture of pay, and restriction. 4. On 29 January 1973, he again accepted NJP under the provisions of Article 15 of the UCMJ for dereliction in the performance of his duties. His punishment consisted of a reduction to pay grade E-3 (suspended), a forfeiture of pay, and extra duty. 5. He served in Korea from 22 July 1973 to 27 April 1974. He was assigned to the 1st Signal Brigade. 6. On 25 January 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying lawful orders from a commissioned officer and/or a noncommissioned officer (twice). His punishment consisted of reduction to pay grade E-3 and restriction. 7. On 13 February 1974, his command preferred court-martial charges against him for one specification of wrongfully using a controlled substance, one specification of wrongfully possessing a controlled substance, and three specifications of willfully disobeying lawful orders. 8. His voluntary request for discharge is not available for review. 9. On 28 April 1974, the separation authority approved the applicant’s discharge action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial and ordered the applicant reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate. 10. On 28 April 1974, Headquarters, U.S. Army Personnel Center, Oakland, CA published Special Orders Number 118 discharging the applicant, effective 28 April 1974, with service characterized as under other than honorable conditions. Accordingly, the applicant was discharged on 28 April 1974. 11. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is not available for review. However, he provides an NA Form 13038, issued on 17 September 2004, confirming the termination of his service with an undesirable discharge on 28 April 1974. 12. On 23 April 1981, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. REFERENCES: 1. AR 635-200 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. Before making the request, a Soldier must be given the opportunity to consult with legal counsel to be 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. At the time, submitting a request under this provision of the regulation required that the Soldier admit guilt to the charge(s) against him or her or to a lesser included offense(s). A discharge under other than honorable conditions (i.e., an undesirable discharge) is normally considered appropriate. 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. 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. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR decides cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's records are void of the complete facts and circumstances that led to his discharge. However, his records document several instances of misconduct. 2.  His record contains a DD Form 458 (Charge Sheet) as well as an approval memorandum by the separation authority approving his request for discharge under the provisions of chapter 10 of AR 635-200 in lieu of a court-martial. His service was directed to be characterized as under other than honorable conditions. 3. The issuance of a discharge decision under the provisions of AR 635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing request a discharge from the Army in lieu of trial by a court-martial. 4. In the absence of evidence showing otherwise, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. The separation authority deemed the applicant's service did not rise to the level required for a general characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016833 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016833 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2