IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150004837 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 to a general discharge. 2. The applicant states: * he was young and struggling with a serious drinking problem which impacted his ability to work and do his job in the Army * he feels the Army should have at least tried to counsel him or send him to classes to manage this problem * after being released from the Army, he struggled with this problem for 14 years, received a driving under the influence charge and was incarcerated * he has now been sober for the last 20 years and as he gets older, he hopes the Board will consider his plea for leniency and compassion 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 was born in November 1959 and enlisted in the Regular Army on 15 August 1979, at nearly 20 years of age. He completed training and was awarded military occupational specialty 05C (Radio Teletype Operator). 3. Following completion of training, he was assigned to Company A, 501st Signal Battalion, Fort Campbell, KY. On 2 October 1980, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 8 October 1980. 4. On 12 November 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for: * being AWOL from 2 to 8 October 1980 * willfully disobeying a lawful order on 25 August 1980 * being disrespectful in language towards a superior noncommissioned officer on 25 August 1980 5. On 19 December 1980, he again departed his unit in an AWOL status and on 18 January 1981, he was dropped from the rolls as a deserter. He appears to have returned to military control on or about 15 March 1981. 6. Following his return from AWOL, it appears court-martial charges were preferred against him for one or more specifications of violating the UCMJ. The charge sheet is not available for review with this case. 7. On 17 March 1981, at Fort Campbell, KY, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he 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 his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * he acknowledged 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 stated that under no circumstances did he desire further rehabilitation or to perform further military service * he did not elect to submit a statement on his own behalf 8. On 27 March 1981, his company and battalion commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions characterization of service. 9. On 3 April 1981, he underwent a mental status evaluation. He was found mentally responsible and to have the mental capacity to understand and participate in his separation proceedings. 10. On 8 April 1981, consistent with the chain of command's recommendations, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant receive an under other than honorable conditions discharge with reduction to the lowest enlisted grade. 11. The applicant was discharged on 10 April 1981. His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 1 year, 4 months, and 13 days of active service during this period and he had lost time from 22 September to 7 October 1980 and 19 December 1980 to 15 March 1981. 12. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. It 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. b. 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 records show 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. 2. The applicant was nearly 20 years of age at the time of his enlistment and nearly 21 years of age at the time of his offenses. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age. 3. There is no evidence in the applicant's record and he provides none to support his contention that he struggled with a drinking problem or that he addressed such a problem with his chain of command or other support agencies at his installation. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. 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) AR20150004837 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004837 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1