IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150009038 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X__ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150009038 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150009038 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 honorable conditions (general) discharge to honorable. 2. He states he performed a stateside swap from Fort Hood, TX to Fort Dix, NJ and arrived at his new duty station in March 1976. He adds he informed his company commander that he was getting married on 3 April 1976. The week before his wedding, he was told to see the company commander to work out the details of his leave. The commander informed him that he could not or would not approve his leave so he went absent without leave (AWOL) to go on his honeymoon. 3. He 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 7 January 1974. 3. The applicant’s disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 7 May 1976 for being AWOL from 30 April to 5 May 1976. 4. On 16 August 1976, the applicant's commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37. The commander also advised the applicant that he was recommending the issuance of a General Discharge Certificate. He cited the applicant's continually failure to report for duty, low level of personal appearance, constant domestic turmoil, and his failure to accomplish any constructive work as the bases for the proposed action. 5. The applicant’s commander further advised him that if he received a general discharge, he could expect to encounter substantial prejudice in civilian life. The commander also advised the applicant of his right to: * consult with an officer of the Judge Advocate General's (JAG) Corps prior to completing his acknowledgements * submit a statement in his own behalf * that he had the right to decline this discharge, but if subsequent misconduct indicated that such action was warranted, he could be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation 6. On 16 August 1976, the applicant acknowledged he was notified of the proposed discharge action and he voluntarily consented to the discharge. He indicated he desired to make a statement in his own behalf. 7. In his statement, dated 17 August 1976, the applicant indicated he felt that he should be considered for an honorable discharge since he had served honorably and proudly during his 31 months on active duty. He continued by expounding on his accomplishments while serving on active duty at Fort Hood, TX. He indicated that on 6 March 1976, he transferred to Fort Dix, NJ on a stateside swap. He was married on 3 April 1976 and at that time, the commander had given him excess leave so that he could get married and go on a honeymoon. He and his spouse felt that was a great help and favor to them. He states when he started having family problems, he submitted paperwork for leave on three occasions and each were canceled. Additionally he maintained that he went to mental hygiene for help and possible transfer to another company. He stated that he was truly at fault and guilty, but he believed there could have been more help available. 8. On 1 September 1976, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 with the issuance of a general discharge. 9. On 9 September 1976, he was discharged accordingly. His DD Form 214 shows he was discharged with an under honorable conditions (general) characterization of service. It also shows he completed 2 years, 7 months, and 26 days of active service with 7 days of time lost. 10. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. a. Chapter 5, paragraph 5-37 (Expeditious Discharge Program), in effect at the time, provided for the discharge of enlisted personnel who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either an honorable or a general discharge. b. Chapter 3, 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. DISCUSSION: 1. The applicant maintains, in effect, that his discharge should be upgraded to honorable because his AWOL was based upon being denied leave in conjunction with his wedding and honeymoon. 2. The evidence of record shows on 17 August 1976, he submitted a statement in conjunction with his discharge, in which he stated he was married on 3 April 1976 and at that time, the commander had given him excess leave so that he could get married and go on his honeymoon. Therefore, his contention that his AWOL was based on being denied leave to go on his honeymoon is not supported by the available evidence. 3. The evidence further shows he was properly and equitably discharged in accordance with regulations in effect at the time. His commander notified him of the reasons and the type of discharge he was recommending. He voluntarily consented to the proposed discharge. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 4. He understood if he was issued a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life and he was provided the opportunity to consult with a JAG officer. The records contain no evidence of procedural or other errors that would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009038 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009038 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2