IN THE CASE OF: BOARD DATE: 29 October 2014 DOCKET NUMBER: AR20140004497 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 of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states: * he would like an upgrade because his former wife was killed in 1978, which was the reason for his going absent without leave (AWOL) * "HONORABLE" is misspelled in item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) * all of the dates are not on his record of service (DD Form 214) 3. The applicant provides his DD Form 214. 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 23 July 1978. 3. His record contains a DA Form 2-1 (Personnel Qualification Record), which shows in: * item 5 (Foreign Service), is blank * item 35 (Record of Assignments), no overseas assignments, no prior active service, and no breaks in service 4. His record contains his disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one instance of being AWOL from 9 to 17 May 1979. 5. The applicant's record contains a DD Form 458 (Charge Sheet), dated 28 August 1979, that shows a court-martial charge was preferred against him for one specification of being AWOL from 16 July to 20 August 1979. 6. On 28 August 1979, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. 7. On the same date, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions. He acknowledged he understood that if his discharge request were 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 (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. The applicant elected to submit a statement in his own behalf wherein he essentially indicated that he went AWOL because his wife did not like him being in the field all of the time, he did not like his military occupational specialty, he just wanted to quit the service and go back to his old job. 8. The applicant's unit commander subsequently recommended approval with the issuance of an under other than honorable discharge certificate. 9. On 24 September 1979, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10. He directed the applicant be furnished an under other than honorable conditions discharge certificate. 10. On 1 October 1979, the applicant was discharged accordingly. He completed 1 year, 1 month, and 4 days of creditable active service with 35 days lost. His DD Form 214 shows in: * item 12d (Total Prior Active Service), see item 18 * item 12e (Total Prior Inactive Service), see item 18 * item 12f (Foreign Service), see item 18 * item 12g (Sea Service), see item 18 * item 18 (Remarks): * Service Member separated on temporary records and Soldiers affidavit * DD Form 215 (Correction to DD Form 214, Certificate of Release of Discharge from Active Duty) will be issued to provide missing information * item 24, the entry "UNDER OTHER THAN HNNORABLE [sic] CONDITIONS" 11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge 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 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 13. Army Regulation 635-5 (Personnel Separations - Separation Documents) at the time prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. Paragraph 2-4 contains guidance on the preparation of the DD Form 214. Item 12 states to use extreme care in completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information. It states for: a. items 12d and 12e to enter all service entered will be less time lost under 10 U.S.C.972 and time lost after expiration of term of service. b. item 12f to enter the total amount of foreign service completed during the period covered in item 12c. c. item 12g is self-explanatory. DISCUSSION AND CONCLUSIONS: 1. Evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. There is no indication his request was made under coercion or duress. 2. Although he now contends that his former spouse’s death in 1978 was the reason he went AWOL, he went AWOL in 1979. In addition, at the time he stated that his current wife did not like him being in the field all the time and he just wanted to quit the service. 3. His service record shows he received an Article 15 and was AWOL a total of 43 days. As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge. 5. There is no evidence of record which shows the applicant had any prior active service, prior inactive service, foreign service, or sea service. Therefore, items 12d, 12e, 12f, and 12g should be corrected to show "00 00 00." BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ___X_____ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. deleting from items 12d, 12e, 12f, and 12g of his DD Form 214 the current entries and replacing them with the entry "00 00 00"; and d. deleting from item 24 of his DD Form 214 the entry "UNDER OTHER THAN HONORABLE CONDITIONS" and replacing it with the entry "UNDER OTHER THAN HONORABLE CONDITIONS." 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting item 24 of his DD Form 214 to show his character of service as honorable. ______________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) AR20140004497 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140004497 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1