IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150007277 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, in effect, an upgrade of his under other than honorable conditions discharge. 2. The applicant states he is seeking Department of Veterans Affairs (VA) benefits and entitlements. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty), ending on 30 June 1977 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 23 December 1988 * VA letter COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's under other than honorable conditions discharge. 2. Counsel states the applicant fell on hard times. With a terminally-ill spouse, he is maintaining his household with minimum resources. If the Board issued him an honorable discharge, he would receive VA entitlements, i.e., service-connected disability for Agent Orange exposure. 3. Counsel does not provide any additional evidence. 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 8 July 1974 and held military occupational specialty 76Y (Unit Supply Clerk). He served in Korea from January 1976 to February 1977. 3. He was honorably discharged on 30 June 1977. He was issued a DD Form 214 that captured his active service of 2 years, 11 months, and 23 days. 4. He reenlisted in the Regular Army on 1 July 1977. He served in Alaska from August 1978 to February 1980. While in Alaska on 13 April 1979 he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disorderly conduct. 5. On 22 March 1980 he departed his unit in an absent without leave (AWOL) status. He returned to military control on 31 March 1980. 6. On 4 April 1980 he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 22 to 31 March 1980. His punishment included a suspended reduction to E-2 with extra duty and restriction. 7. On 26 May 1981 he departed his unit in an AWOL status. He returned to military control on 10 June 1981. 8. He went AWOL again on 31 August 1981 and he was dropped from the Army rolls as a deserter on 30 September 1981. He was apprehended by civil authorities in Cumberland County, NC, and returned to military control on 10 June 1982. 9. The next day, 11 June 1982, he departed his unit in an AWOL status. He returned to military control on 9 November 1988. He was assigned to the Personnel Control Facility at Fort Knox, KY, for disposition. 10. On 7 December 1988 court-martial charges were preferred against the applicant for three specifications of being AWOL from 26 May to 10 June 1981, 31 August 1981 to 10 June 1982, and 11 June 1982 to 9 November 1988. 11. On 8 December 1988, 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 other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested a 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: * 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 a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood if the 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * that under no circumstances did he desire further rehabilitation or to perform further military service * he elected to submit a statement on his own behalf 12. In his statement the applicant stated he went AWOL due to family and personal problems. His wife had left him and took the children. He did not know where she went and decided to look for her. He drank heavily. He remained AWOL for about 5 years. He then began going to church to improve his life. He knew what he did was wrong and he asked for forgiveness and a chance. He wanted to continue his service in the Army. 13. On 12 December 1988, the applicant's immediate and intermediate commanders recommended approval of the applicant’s discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 14. On 15 December 1988, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade. On 23 December 1988 the applicant was discharged accordingly. 15. His DD Form 214 shows he completed 4 years, 2 months, and 22 days of active service and he had lost time from 22 to 30 March 1980, 26 May to 9 June 1981, 31 August 1981 to 9 June 1982, and 11 June 1982 to 8 November 1988. He was awarded or authorized the: * Army Service Ribbon * National Defense Service Medal * Army Commendation Medal * Good Conduct Medal (2nd Award) 16. 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. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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 record shows he was charged with the commission of offenses 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. Based on his record of indiscipline, which included two instances of NJP and an extensive history of AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also rendered his service unsatisfactory. There is insufficient evidence to support upgrading his 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) AR20150007756 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007277 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1