IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20160018831 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 IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20160018831 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. IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20160018831 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 (UD) to an honorable discharge (HD). 2. The applicant states he was in a fight with another Soldier over a misunderstanding and as soon as it was over they made up. He was given nonjudicial punishment for being absent without leave (AWOL). He had been told that he could go on leave and when he returned, two weeks later, he was busted. Overall he was a good Soldier. 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 22 June 1971. 3. On 24 September 1973, court-martial charges were preferred for: * conspiracy to commit assault on another Soldier * assault on another Soldier (3 specifications) * unlawfully entering the barracks room of another Soldier with intent to commit a criminal offense, to wit assault * wrongfully communicating a threat toward another Soldier 4. On 30 October 1973, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge). He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an undesirable discharge (UD) certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD. 5. On 1 November 1973, the discharge authority approved the separation, directing the applicant be reduced to the lowest paygrade and discharged with a UD. 6. On 9 November 1973, the applicant was discharged with a under conditions other than honorable (UCOTH) characterization of service. He completed 2 years, 4 months, and 18 day of service. His DD Form 214 shows no lost time and lists his awards as the National Defense Service Medal and the Expert Qualification Badge with Hand Grenade Bar. 7. The available record contains no evidence of the alleged AWOL. 8. There is no indication that he applied to the Army Discharge Review Board within that Boards 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under conditions other than honorable is normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. c. A UCOTH discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. d. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A UCOTH discharge is normally considered appropriate. DISCUSSION: 1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. 2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The type and character of the discharge is commensurate with the offense and process for which he requested discharge rather than face trial by court-martial. 3. Based on the applicant's recorded behavior and indiscipline, he did not adhere to the standards of acceptable conduct and behavior expected of military personnel. He does not meet the criteria of acceptable conduct and performance of duty required for an HD or GD as stated in Army Regulation 635-200. //NOTHING FOLLOWS// ABCMR Record of Proceedings Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160018831 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018831 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2