IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20160019343 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: AR20160019343 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: AR20160019343 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 he was too young to join. He was a 17-year old kid who had never been away from home. He grew up in the Jim Crow era and he was not ready to take orders. He tried but could not do it. He wants to be forgiven. 3. The applicant provides no additional documents. 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 was born in August 1955 and enlisted in the Regular Army for a 4-year term on 16 November 1972. He was 17 years and 3 months of age at the time. He held military occupational specialty 11C (Mortarman). 3. He was assigned to the 1st Battalion, 18th Infantry Regiment, 1st Infantry Division, Fort Riley, KS. 4. On 22 March 1973, he was convicted by a special court-martial of one specification of wrongfully committing an assault upon another Soldier. The court sentenced him to confinement at hard labor for one month and forfeiture of pay. The convening authority approved the sentence on 23 August 1973. 5. On 11 September 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey an order from his commanding officer. 6. On 13 November 1973, he again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful in language and failing to obey an order. 7. On 21 February 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) on 19 February 1974, on 20 February 1974, and on 1 March 1974. 8. On 21 March 1974, he was convicted by a summary court-martial of one specification of AWOL on 6 March 1974, two specifications of being disrespectful in language, and three specifications of willfully disobeying lawful orders. The court sentenced him to reduction to E-1, forfeiture of pay, hard labor without confinement for 45 days, and restriction. The convening authority approved the sentence on 22 March 1974 (he suspended the hard labor and restriction for 4 months). 9. On 11 April 1974, he was convicted by a summary court-martial of one specification of AWOL from 1 to 5 April 1974 and two specifications of willfully disobeying lawful orders. The court sentenced him to reduction to E-1, forfeiture of pay, and hard labor without confinement for 30 days. The convening authority approved the sentence on 12 April 1974. However, his conviction and sentence were set aside on 10 May 1974. 10. On 9 July 1974, he departed his unit in an AWOL status and on the same date, he was dropped from the rolls as a deserter. 11. On 27 October 1974, he was arrested by the Riley County Police Department in Manhattan, KS, for burglary. He was tried on 22 November 1974 and was sentenced to 1 to 10 years of imprisonment. He ultimately returned to military control on 9 December 1974. 12. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain: a. A memorandum, dated 17 October 1975, indicating he declined a separate document explaining the narrative reason for separation, a description of the authority for his separation, or the reenlistment code. b. An order issued by the Commanding General, 1st Infantry Division on 6 October 1975 ordering him not to reenter or be found within the limits of Fort Riley. c. A DD Form 214 (Report of Separation from Active Duty) that shows he was discharged under the provisions of section VI of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) due to being convicted by civil court, and he was issued an Under Other Than Honorable Conditions Discharge Certificate. This form also shows he completed a total of 2 years, 2 months, and 3 days of active service and he had 269 days of time lost. 13. There is no indication he petitioned the Army Discharge Review Board for review of his discharge processing within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-206, in effect at the time, provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, would, as a general rule, be retained in service. If the offense was indicative of an established pattern of frequent difficulty with the civil authorities, the member's military record was not exemplary, and retention was neither practicable nor feasible, a recommendation for separation would be submitted through the major command headquarters to the Adjutant General. Furthermore, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policies and procedures 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. DISCUSSION: 1. The complete facts and circumstances surrounding his discharge are not available for review. However, the available evidence shows the applicant was convicted by civil court for burglary. His conviction yielded a lengthy confinement sentence. Accordingly, his chain of command presumably initiated separation action against him and he was properly notified. 2. 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 characterization of service he received was commensurate with the reason for his discharge. 3. The applicant was 17 years and 3 months of age at the time of his enlistment. However, he was 18 to 19 years of age at the time of his offenses. In any case, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019343 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160019343 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2