IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150003643 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 under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD) or an honorable discharge (HD). 2. The applicant states: a. He does not make excuses for the actions that led to his discharge and just recently learned of his possibility to receive a characterization upgrade. b. He wants his records to reflect he was a “strike” Soldier who progressed at a very fast pace gaining the respect of his fellow Soldiers and superiors. d. His problems were not with the Army but with his family and being young. e. Looking back, he understands from his maturity that he should have handled his situation differently. f. He learned so much from his experience which has made him a better person. g. He is guilty of being a young and immature adolescent and now wishes he knew then what he knows now. 3. The applicant provides no additional documents. 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 12 February 1980. He was trained in and awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman). 3. His DA Form 2-1 (Personnel Qualification Record – Part II) shows in Item 18 (Appointments and Reductions) that he was promoted to private first class/E-3 on 1 February 1981, and this was the highest rank he attained while serving on active duty. It also shows he was reduced to private/E-1 on 13 November 1981. 4. On 21 October 1981, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about 23 March 1981 to 20 October 1981. 5. On 28 October 1981, the applicant underwent a mental status evaluation that showed the following: * his behavior and thought content were normal * he was fully alert and oriented * his mood was unremarkable * his thinking process was clear * his memory was good * he had the mental capacity to understand and participate in separation proceedings 6. On 28 October 1981, 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 a UOTHC discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, 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. He indicated he had not been subjected to coercion whatsoever by any person and made his request of his own free will. He elected not to submit a statement on his own behalf. 7. In his request for discharge the applicant acknowledged he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UOTHC discharge. 8. On 13 November 1981, the separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge. 9. On 14 December 1981, the applicant was discharged accordingly. He completed 1 year, 3 months, and 7 days of net active service this period with 178 days of lost time. 10. There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 HD or GD is authorized, an UOTHC discharge is normally considered appropriate. b. Paragraph 3-7a provides that an HD 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 GD 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 HD. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his UOTHC discharge should be upgraded to a GD. There is insufficient evidence to support this claim. 2. The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 211 days. After consulting with legal counsel, he voluntarily requested discharge in lieu of trial by court-martial to avoid possible incarceration. 3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. His service did not support a GD or HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now. 4. In view of the foregoing, there is no basis for granting the applicant's 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) AR20150003643 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003643 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1