IN THE CASE OF: BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150005127 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, in effect, he would like his discharge upgraded. 3. The applicant provides no additional evidence or documentation. 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 10 January 1978. On or about 14 May 1978, he was assigned to Battery E, 1st Battalion, 68th Air Defense Artillery, 1st Cavalry Division, Fort Hood, TX. 3. On 11 July 1978, he departed his unit in an absent without leave (AWOL) status and, on 11 August 1978, he was dropped from the Army rolls as a deserter. He was returned to military control on 6 August 1980 and reassigned to the U.S. Army Personnel Control Facility at Fort Knox, KY. 4. On 14 August 1980, the applicant's commander preferred court-martial charges against the applicant for one specification of AWOL from 11 August 1978 to 6 August 1980. 5. On 15 August 1980, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him. Subsequent to receiving legal counsel, he 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 his request for discharge, he indicated he: * was making the request of his own free and he had not been subjected to any coercion whatsoever by any person * understood 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 or a dishonorable discharge * understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * elected to submit a statement in his own behalf 6. In his personal statement he wrote: * he was 21 years of age and had 12 years of education * the reason he joined the Army was to be able to get a higher education * his military occupational specialty was 16P (Air Defense Artillery Short Range Missile Crewman) * he was requesting the chapter 10 discharge in lieu of court-martial for personal reasons 7. On 16 September 1980, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge. Accordingly, on 6 November 1980, he was discharged at Fort Knox, KY. 8. His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. This form also shows he completed 9 months and 2 days of net active service this period and 1 month, and 10 days of prior inactive service. He also had 757 days of lost time. He was awarded or authorized the: * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Second-Class (Marksman) Marksmanship Qualification Badge with Grenade Bar 9. 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. 10. 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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 available evidence, to include the applicant’s DD Form 214, shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 chapter 10 with an under other than honorable conditions discharge. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation appear to have been met, and the rights of the applicant were fully protected throughout the separation process. 2. The applicant's period of AWOL served to diminish the overall quality of his service below that meriting either an honorable or a general discharge under honorable conditions. Based upon the foregoing, the evidence does not support granting the requested relief. 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) AR20150005127 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005127 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1