IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150004218 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 discharge. 2. The applicant states: * he was proud to serve in the Army and our country then and he remains proud today * he is sorry how his life turned out; he was in advanced individual training when he received news of his mother's illness * he was able to secure leave and return to stay with her for nearly 52 days until she died, which affected him tremendously * he had a wife and a baby and two younger sisters; his mother did not want his sisters to stay with his stepdad because she did not trust him * he had no choice but to take care of his sisters and after nearly a month, his older sister took the two sisters in * he could not get back to his unit in time but he did turn himself in to authorities at Fort Knox, KY * he does not think his family situation came out in the court-martial * he is 55 years of age now with two brain surgeries that affect his memory; he is trying to get his life straight * it is not anyone's fault but his and he would like the Board to consider upgrading his discharge 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge 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 enlisted in the Regular Army on 12 July 1977. He completed basic combat training at Fort Knox, KY and was reassigned to Fort Benning, GA for advanced individual training. 3. On 22 October 1977, he departed his training unit in an absent without leave (AWOL) status and on 19 November 1977, he was dropped from the Army rolls as a deserter. He surrendered to military authorities at Fort Knox on 15 March 1978. 4. On 22 March 1978, court-martial charges were preferred against him for one specification of being AWOL from 22 October 1977 to 15 March 1978. 5. On 23 March 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him. Following consultation with legal counsel, he 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. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions * he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * under no circumstances did he desire further rehabilitation and he had no desire to perform further military service * he elected to submit a statement in his own behalf 6. In his statement, the applicant stated he joined the Army because he wanted to go places; however, his mother got sick and he went on leave from Fort Benning to see her. She died shortly after and he could not stand the pressure. He had two sisters to take care of and he had to support them. 7. On 17 April 1978, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under honorable conditions (general) discharge. 8. On 24 April 1978, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade, if applicable. On 12 June 1978, the applicant was discharged accordingly. 9. The DD Form 214 the applicant was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. This form shows he completed 6 months and 8 days of creditable active service during the period under review and he had 144 days of lost time. He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the First Class (Sharpshooter) Marksmanship Qualification Badge with Grenade Bar. 10. There is no indication in his records that he petitioned the Army Discharge Review Board for a review of his discharge action within that board's 15-year statute of limitations. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 2. The evidence of record also shows he submitted a statement in connection with his voluntary discharge and explained his family situation at the time. It appears his chain of command considered his situation when they made their recommendations to the separation authority. Notwithstanding those recommendations, the separation authority directed issuance of an under other than honorable conditions discharge. 3. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. The separation authority determined that this misconduct rendered his service unsatisfactory. The evidence of record supports the separation authority's decision. 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) AR20150004218 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004218 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1