BOARD DATE: 16 April 2014 DOCKET NUMBER: AR20130014423 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 discharge under other than honorable conditions to general under honorable conditions. 2. The applicant states he was wrongfully accused of a crime and given the choice of being court-martialed or being discharged. He chose discharge. He also states he was young and uninformed and did not speak to a Judge Advocate General officer. 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 5 April 1977 for a period of 3 years and assignment to Korea. He completed one-station unit training at Fort Knox, Kentucky, and was transferred to Korea for his first and only duty assignment on 26 July 1977. 3. On 17 April 1978, nonjudicial punishment was imposed against him for two specifications of failing to go to his place of duty. 4. On 17 May 1978, nonjudicial punishment was imposed against him for unlawfully transferring a gas range to a Korean National. 5. The evidence of record shows the applicant was absent without leave (AWOL) during the following periods: * 20 April 1978 – 1 day * 20-26 June 1978 – 7 days * 7-8 July 1978 – 2 days * 11-12 July 1978 – 2 days * 20 July-26 August 1978 – 38 days 6. The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Roanoke, Virginia, in 1998. However, his records do contain a duly-authenticated DD Form 214 which shows the applicant was discharged under other than honorable conditions in lieu of trial by court-martial on 19 October 1978 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He completed 1 year, 4 months, and 25 days of active service and he accrued 50 days of lost time due to being AWOL. 7. There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 8. On 7 June 1998, the applicant gave his probation officer permission to obtain copies of his military records. 9. 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time. 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 applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his multiple absences and his otherwise undistinguished record of service. Accordingly, his service does not rise to the level of a general discharge. 2. In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights and that the type of discharge directed and the reasons were appropriate under the circumstances. 3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record. In doing so, he would have admitted guilt to the charges against him. 4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a general discharge. 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 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) AR20130014423 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130014423 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1