BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150002136 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 (UOTHC) discharge. 2. The applicant states a doctor sent him home and 5 days later he was informed that he was absent without leave (AWOL). He returned to his unit and he was discharged. 3. The applicant does not provide any 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 was inducted into the Army of the United States on 5 November 1970. He was discharged on 12 November 1970 and enlisted in the Regular Army on 13 November 1970. 3. A DA Form 458 (Charge Sheet), dated 27 August 1971, shows he was charged with the following: * being absent AWOL from his advanced individual training (AIT) brigade from 9 February 1971 through 10 March 1971 and 18 March 1971 through 28 July 1971 * being AWOL from the U.S. Army Personnel Control Facility from 24 August 1971 through 26 August 1971 4. On 1 September 1971, he voluntarily requested 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. Prior to submitting his request, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the effects of his request for discharge, and the rights available to him. 5. He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He acknowledged that as a result of such a discharge he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life by reason of an undesirable discharge. 6. A Report of Mental Status Evaluation, dated 2 September 1971, showed: * his behavior was aggressive * he was fully alert * his mood was hyperactive * his thinking process was clear * his thought content was normal * his memory was good * he had no significant mental illness * he had the mental capacity to understand and participate in the proceedings * he was mentally responsible * he was able to distinguish right from wrong and able to adhere to the right * he met retention standards 7. On 8 September 1971, an authorized official approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate. On 15 September 1971, he was discharged accordingly and his service was characterized as under conditions other than honorable. He completed 4 months and 29 days of total active service with 133 days of time lost. 8. His record does not show any significant achievements or acts of valor during his military service. 9. 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. 10. He states that he was sent home by a doctor and 5 days later he was informed that he was AWOL. He went back to his unit and he was discharged; however, there is no evidence and he has not provided any to support this claim. 11. 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 member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The record shows all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 2. He states that he was sent home by a doctor; however, other than his own statement, there is no evidence and he does not provide any to substantiate this claim. Furthermore, evidence shows he was AWOL on three different occasions. The available evidence supports the characterization of service he received. 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) AR20150002136 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002136 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1