AR20150010096

BOARD DATE: 9 June 2016

DOCKET NUMBER: AR20150010096

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

__x______ __x______ __x___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 9 June 2016

DOCKET NUMBER: AR20150010096

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.

BOARD DATE: 9 June 2016

DOCKET NUMBER: AR20150010096

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 (UOTHC) characterization of service.

2. He states there were mitigating circumstances that the command failed to consider at the time of his discharge. He enjoyed being in the Army and serving his country, but the thought of going overseas and leaving his loving wife was unbearable. Therefore, he went absent without leave (AWOL).

3. The applicant provides:

* Special Court-Martial (SPCM) Order Number 80, dated 29 March 1969
* VA Form 21-4138 (Statement in Support of Claim), dated 3 June 2015
* Self-authored statement
* Supporting statement from a veteran’s services officer

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. On 5 December 1967, the applicant was inducted into the Army of the United States.

3. SPCM Order Number 1027, issued by Headquarters, Special Troops, U.S. Army Armor Center, Fort Knox, KY on 7 August 1968, convicted him of being AWOL from on or about 22 February to 16 June 1968. His sentence was adjudged on 2 August 1968 and included confinement at hard labor for 6 months and a forfeiture of $41 pay for 4 months.

4. A DA Form 2476 (Application for Separation – Hardship or Dependency) shows, on 31 October 1968, the applicant applied for a hardship discharge. He cited his parents’ inability to work, their continued decline in health, and his spouse’s poor health and her inability to assist them as reasons for the discharge action. He stated his presence at home would help alleviate their financial problems and depression. On 27 December 1968, the Department of the Army (DA) disapproved the applicant’s request stating the evidence did not indicate conditions at home warranted his separation.

5. SPCM Order Number 80, issued by Headquarters, U.S. Army Training Center, Armor, Fort Knox, KY on 29 March 1969, convicted him of being AWOL from on or about 8 to 24 February 1969. His sentence was adjudged on
11 March 1969 and included a forfeiture of $46 pay for 4 months and confinement at hard labor for 4 months.

6. On 23 August 1969, charges were preferred against him for being AWOL from on or about 24 April to 18 July 1969 and violating the conditions of his parole on or about 24 April 1969.

7. The applicant consulted with legal counsel on 3 September 1969 and subsequent to counsel, voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10.

a. In his request for discharge, he indicated he had been advised of the implications attached to his request and understood that if his request was accepted, his service could be characterized as UOTHC and he could be furnished an undesirable discharge.
b. He acknowledged he understood he might encounter substantial prejudice in civilian life and he might be ineligible for many or all State, Federal, and/or Army benefits if he received an undesirable discharge. He elected not to submit a statement in his own behalf.

8. On 15 September 1969, the separation authority approved the applicants discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of an undesirable discharge.

9. The Army discharged the applicant on 19 September 1969. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his discharge was accomplished under the provisions of chapter 10, Army Regulation 635-200, with service characterized as UOTHC. His DDForm 214 also shows he completed 1 year, 3 months, and 4 days of net active service with 195 days listed as time lost.

10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11. He provides a statement in support of his claim from his spouse who explains that she and the applicant have been married for 48 years. In 1969, after having two miscarriages, their child was born and the applicant subsequently received reassignment orders. He desperately wanted to see his family prior to his reassignment, but his command denied his request; therefore, he went AWOL. The applicant is currently suffering from dementia/Alzheimers and is in need of VA benefits.

12. He also provides a supporting statement from a veteran’s services officer who states the applicant went AWOL only after exhausting all avenues available to him to get leave to see his sick spouse. Once the applicant realized his spouse and baby were all right, he returned to the Army to do the right thing. He opines that the applicant turning himself in after the misconduct was an honorable act that warrants an upgrade of his UOTHC discharge to a general discharge.

REFERENCES:

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

a. Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood that he could receive service characterized as UOTHC, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished an individual who was discharged for the good of the service.

b. An honorable discharge is given when the quality of the Soldiers service has generally met the standards of acceptable conduct and duty performance.

c. 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 applicant contends the Board should consider upgrading his character of service due to mitigating circumstances that his command failed to consider at the time of his discharge.

2. The evidence shows, on 2 August 1968, a SPCM found him guilty of being AWOL from on or about 22 February to 16 June 1968 and sentenced him to confinement at hard labor for 6 months. During this time, he applied for a hardship discharge that the DA denied on 27 December 1968, citing the evidence did not indicate his conditions at home warranted his separation. On 11 March 1969, a SPCM again found him guilty of being AWOL from on or about 8 to 24 February 1969.

3. The evidence confirms all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record shows he voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial.

4. His record of indiscipline shows two SPCM convictions and 195 days of lost time.

5. Based on his record of indiscipline (AWOL), his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation635-200, his service did not meet the criteria for an honorable or general discharge.

6. Additionally, the ABCMR does not grant requests for upgrade of discharges solely for making the applicant eligible for veterans or other benefits. The Board individually decides each case based upon its merits when an applicant requests a change in his or her discharge.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010096

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010096

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2