BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150005052 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 at the top of his class at Fort Dix, New Jersey and was more than willing and pleaded to remain on active duty at the time of his discharge. 3. The applicant provides three character witness statements. 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 6 February 1980. He completed his initial entry training at Fort Dix, New Jersey. The highest rank/grade he attained while serving on active duty was private (PV1)/E-1. Following the completion of his initial entry training, he was put in a casual status on or about 6 June 1980, enroute to an assignment to Fort Ord, California. 3. The applicant was reported as absent without leave (AWOL) on or about 1 July 1980. He was dropped from the rolls on or about 31 July 1980. He surrendered to military authorities on 30 October 1980 and was assigned to the Personnel Control Facility (PCF), Fort Bragg, North Carolina. 4. Court-martial charges were preferred against him on 4 November 1980 for being AWOL from on or about 1 July 1980 through on or about 30 October 1980. 5. He consulted with legal counsel on 5 November 1980 and 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. In his request for discharge he acknowledged: a. He understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. b. 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him. c. He further acknowledged he understood that 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He was advised he could submit any statements he desired in his own behalf and elected to do so; however, they are not available for review. e. He was advised he could request a physical prior to his separation. 6. The commander of the PCF, Fort Bragg, NC, interviewed the applicant. By memorandum dated 5 November 1980, the commander recommended discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, due to the applicant's attitude toward the military and his lack of rehabilitative potential. It states, in pertinent parts, the following: a. The applicant was aware of the nature of the interview and the consequences of a discharge under other than honorable conditions. The applicant desired elimination from the service under the provisions of Army Regulation 635-200, chapter 10, under less than honorable conditions. b. The applicant stated that his AWOL for approximately 121 days was caused by his inability to adjust to military life and by the fact that he missed his family. The Army was not what he expected even though he completed basic and advanced individual training without difficulty. He was given two Article 15s for failure to repair and disrespect. c. He was depressed and missed his family and went home on leave after advanced individual training. He felt he needed to stay home so he never reported to Fort Ord, California and went AWOL. d. He was asked if he would consider remaining in the Army, accepting punishment for his AWOL time, and fulfilling his military service obligation with the possibility of a compassionate reassignment enabling him to be closer to his family. He stated he found civilian employment and surrendered only to receive a discharge and that he would not remain in the Army. He was emphatic and said he would go AWOL again to continue his civilian life. 7. A review of his record does not contain any documentation wherein he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice. 8. The appropriate approval authority approved the applicant's request for discharge on 17 February 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed his reduction to the lowest enlisted grade unless already serving in that grade and discharge under other than honorable conditions. 9. The applicant was discharged accordingly on 24 February 1981. The DD Form 214 he was issued shows: * he was credited with the completion of 8 months, and 20 days of net active service * he 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 was issued an under other than honorable conditions discharge * he had lost time from 1 July 1980 through 29 October 1980 10. The applicant provides three character witness statements that attest to his positive lifestyle, good personality, and helpfulness. 11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. 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. c. Chapter 10 provides for a Soldier 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The applicant's record shows he was AWOL for approximately 121 days. Court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge in order to avoid trial by court-martial and the potential punitive discharge. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. His discharge accurately reflects his overall record of service. 4. He contends he wanted to remain on active duty; however, in an interview conducted by the PCF commander, it was noted he was emphatic about not remaining in the military and would go AWOL again if not discharged. 5. Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also 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) AR20100014558 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005052 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1