IN THE CASE OF: BOARD DATE: 12 June 2014 DOCKET NUMBER: AR20130016350 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 his general discharge be upgraded to an honorable discharge. 2. The applicant states he should have an honorable discharge, and an upgrade to his discharge will allow him to obtain a bank account. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). 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’s record shows he enlisted in the Regular Army on 14 April 1977. 3. On 1 November 1978, pursuant with his pleas, he was convicted by a summary court-martial of being absent without leave (AWOL) from 12 September 1978 to 12 October 1978. 4. On 9 November 1978, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), with a general discharge. The commander noted that the applicant was a good Soldier; however, the applicant's family problems interfered with his job performance and his problems would continue unless he was at home to ease the pressure on his mind. 5. He was advised he had the right to decline the discharge, but if subsequent misconduct indicated that such action was warranted, he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation. 6. He was further advised that if he received a general discharge he may expect to encounter substantial prejudice in civilian life. The commander also advised him: * of his right to consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements * of his right to submit a statement in his own behalf 7. He acknowledged notification of the proposed discharge action and voluntarily consented to the discharge. He did not submit statements in his own behalf. 8. On 15 November 1978, the appropriate authority approved his separation under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the issuance of a General Discharge Certificate. 9. On 22 November 1978, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200. He had completed 1 year, 6 months, and 9 days of active service with 30 days listed as lost time. 10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 11. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either a general or honorable discharge. 12. Army Regulation 635-200, in effect at the time, provides that those Soldiers processed under the EDP may be released from active duty and transferred to the Individual Ready Reserve to complete their military obligation if deemed to have the potential for service under conditions of full mobilization. Soldiers deemed to have no potential for useful service under conditions of full mobilization were to be discharged. 13. Army Regulation 635-200, paragraph 3-7a, states 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was convicted by a summary court-martial of being AWOL for 30 days. As a result his commander initiated separation action against him and he voluntarily consented to the proposed discharge. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would have jeopardized his rights. 2. In view of the above, he was properly and equitably discharged in accordance with regulations in effect at the time and his characterization of service is appropriate given his extended AWOL. His request should be denied. 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) AR20130016350 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130016350 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1