IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150004501 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: The applicant requests an upgrade of his under other than honorable conditions discharge to an honorable or a general discharge. 1. The applicant states, in effect, he: * Was discharged 36 years ago from the Army for a very foolish mistake on his part * was a very young man given to doing foolish and disrespectful actions * is now approaching retirement age and he desires to receive benefits from the Department of Veterans Affairs (VA) * is in very poor health and under Social Security law, he is 100 percent disabled * requires a great amount of health care which he cannot afford because he has very limited resources * has no criminal record since his separation from the service * has a family and grandchildren who depend on him for support * is very proud to be an American and he likes and obeys the laws 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 2 March 2015 * DD Form 214 (Report of Separation from Active Duty), dated 25 July 1977 * Three letters from coworkers and one letter from a neighbor attesting to his good character and post-service conduct 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 9 October 1975, at age 18. He completed training as a cannon crewmember. 3. The applicant accepted nonjudicial punishment (NJP) on three separate occasions between 2 February 1976 and 24 January 1977 for failure to go to his appointed place of duty (two specifications) and for being absent without leave (AWOL) (two specifications). 4. On 20 June 1977, the applicant was notified that charges were pending against him for being AWOL from 18 February until 26 February 1977, from 28 February until 3 March 1977, and from 4 March until 28 June 1977. He acknowledged receipt of the notification, and after consulting with counsel he submitted a request for discharge for the good of the service in lieu of trial by court-martial. 5. The appropriate authority approved the request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 25 July 1977, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He completed 1 year, 4 months, and 7 days of net active service this period and he had approximately 162 days of lost time. He received an Under Other Than Honorable Conditions Discharge Certificate. 6. On 20 July 1994, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge to an honorable discharge. 7. The applicant provides three letters from coworkers and one letter from a neighbor, all attesting to his good character and post-service conduct. 8. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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, the 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. A discharge under other than honorable conditions would normally be furnished to 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been noted. His supporting evidence has been considered. 2. The available evidence shows he had charges pending against him for being AWOL. He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial. He was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service. 3. The applicant is commended for his post-service conduct. However, neither his age at the time of his enlistment in the Army, nor his desire to now receive VA benefits is a sufficient justification for granting the requested relief. He had 160 days of lost time as a result of being AWOL. His service simply did not rise to the level of a general or an honorable 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) AR20150004501 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004501 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1