BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150004120 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 undesirable discharge be upgraded to a general under honorable conditions discharge. 2. The applicant states, in effect, his misconduct was due to alcohol. 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 30 April 1974. 3. On 9 August 1974, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 3 June to 5 August 1974 (64 days). 4. On 30 July 1975, court-martial charges were preferred against the applicant for being AWOL from 31 March to 15 July 1975 (107 days). 5. The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was AWOL from 3 to 13 August 1975 (11 days) and was in military confinement from 22 August to 18 September 1975 (28 days). 6. The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he acknowledged that he understood the elements of the offense charged and that he was guilty of the charge against him. He also acknowledged he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge were issued. He submitted statements in his own behalf. He stated he didn't want to stay in the Army because he couldn't adjust to military life. He was in the field when his wife needed him at home. He went home because his wife was pregnant and it was hard for her to take care of one baby when she became very ill. He took his wife to a military hospital, but they didn't want to do anything for her and it was also causing marital problems. He stated that he would accept an undesirable discharge and get out of the Army. 7. The general court-martial approval authority memorandum is not present in his service record. 8. On 30 April 1974, he was discharged after completing 11 months and 1 day of creditable active service with 210 days of lost time. 9. On 21 May 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge from undesirable to general. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 Veterans Administration 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. 11. Army Regulation 635-200 paragraph 3-7b states 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 contention that his misconduct was due to alcohol is acknowledged. However, there is no evidence that shows he was diagnosed with alcoholism prior to his discharge. There is also no evidence that shows he was having drinking problems that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge. 2. During the Chapter 10 processing, the applicant expressed that he could not adapt to military life; he needed to go home to assist his wife, and he agreed to accept an undesirable discharge. 3. The applicant's record shows he was charged with being AWOL (107 days), which is punishable under the UCMJ with a punitive discharge. He admitted he was guilty of the offense for which he was charged. He also received one Article 15 and had a record of 210 days of lost time. 4. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. As such, government regularity insofar as the discharge process must be presumed. It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 5. Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory and does not warrant an upgrade of his 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 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) AR20150004120 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004120 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1