AR20160002702

BOARD DATE: 1 March 2016

DOCKET NUMBER: AR20160002702

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 upgrade to general under honorable conditions his under other than honorable conditions discharge.

2. The applicant states, in effect:

* he was raised by a migrant worker and started working with his father at age 9
* he only went to the fifth grade and did not know how to read or write
* his family moved around a lot, from Texas to Michigan
* he quit school and went to work under his father’s name for 3 years; he earned enough to buy his family a home when he was 15 years old
* he was still helping his family when he was drafted in 1971; getting drafter messed up his life because he could no longer help his family
* he applied for a hardship discharge, but it was denied because his parents had noted on their statements they had bought a camera
* his father served honorably in the Army during World War II; he landed on the beaches of Normandy and was awarded four bronze service stars for the campaigns in which he participated
* his father has now passed, and he regrets not having made his request for upgrade sooner when he was still alive
* although he has passed, he would still like to make his father proud
* he is including a copy of a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the U.S.) which he submitted some time ago; he had requested a personal appearance then, but never received a response
* he is not currently asking to appear before the Board

3. The applicant provides:

* WD AGO Form 53-55 (Honorable Discharge)
* DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge)
* DD Form 293

CONSIDERATION OF EVIDENCE:

1. Title 10, U.S. Code, section 1552(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. The applicant was inducted into the Army of the United States on 20 May 1971 at age 19.

3. While at Fort Ord, CA, for initial training he submitted a DA Form 2476 (Application for Separation – Hardship or Dependency).

a. His request was based on his mother’s illness and the inability of his father to make sufficient income. His company and battalion commanders recommended approval; however, the brigade commander did not concur.

b. The brigade commander recommended disapproval because he felt substantial effort had not been made by other family members and much of the indebtedness resulted from the purchase of luxury or unduly expensive items.

c. The U.S. Army Training Command, Infantry, and Fort Ord disapproved the applicant’s request on 21 October 1971.

4. His available service record contains a DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) showing the applicant was offered nonjudicial punishment (NJP) for departing his unit in an absent without leave (AWOL) status from 9 November 1971 to 30 November 1971. On 2 December 1971, he accepted the NJP and was punished with a reduction in rank/grade to private/E-1, and 45 days of restriction and extra duty.

5. On 3 January 1972, he departed his unit at Fort Ord in an AWOL status. On 2February 1972 he was dropped from Army rolls. He surrendered and returned to military control on 7 June 1972 in Sandusky, MI. He was reassigned to the U.S. Army Personnel Control Facility at Fort Riley, KS.

6. On 27 June 1972, his commander preferred court-martial charges against him for one specification of AWOL for the period 3 January 1972 to 8 June 1972.

7. On 27 June 1972, the applicant consulted with counsel and was advised of the nature of his rights under the UCMJ and that his contemplated court-martial could lead to a bad conduct or dishonorable discharge. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations Enlisted Personnel).

8. He further acknowledged he:

* was making the request of his own free and he had not been subjected to any coercion whatsoever by any person
* understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement in his own behalf

9. On 5 July 1972, the separation authority approved the applicant’s request for discharge and directed he receive an under other than honorable conditions discharge. He was discharged accordingly on 12 July 1972.

10. His DDForm214 reflects he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter10. It also shows:

* his selective service board was located in Sandusky, MI
* his home of record was Croswell (Sanilac), MI (located 20 miles from Sandusky, MI)
* he completed 7 months and 19 days of net active creditable service
* it was unknown whether he was awarded or authorized any decorations, medals, badges, commendations, citations, and/or campaign ribbons
11. Although the applicant provides a completed, but unsigned DD Form 293, there is no record it was ever received or acted upon by the Army Discharge Review Board within its 15-year statute of limitations.

12. Army Regulation 635-200 sets forth the basic authority for the 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. A discharge under other than honorable conditions is normally considered appropriate.

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 AND CONCLUSIONS:

1. The available evidence shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 chapter 10 with an under other than honorable conditions discharge. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation appear to have been met, and his rights were fully protected throughout the separation process.

2. The evidence of record shows, after his request for a hardship separation was denied, he went AWOL twice. Given the fact the stated hardship was his family’s financial problems, his affirmed efforts to support them while still a teenager, and that he apparently turned himself in near his home of record, the evidence suggests he took matters into his own hands and went home to help his family when his chain of command did not support him. While these circumstances could be considered extenuating, there were better alternatives available to him rather than to simply leave his unit in an AWOL status. As such, the circumstances do not appear to sufficiently mitigate his misconduct.

3. Based on the foregoing, the applicant does not appear eligible for the requested relief.

BOARD VOTE:

________ ________ ________ 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 that 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.
ABCMR Record of Proceedings (cont) AR20160002702

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ABCMR Record of Proceedings (cont) AR20160002702

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