IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150012109 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: 28 July 2016 DOCKET NUMBER: AR20150012109 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: 28 July 2016 DOCKET NUMBER: AR20150012109 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 character of service from under other than honorable conditions to honorable. 2. He states he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 because he was absent without leave (AWOL) for 57 days prior to his expiration term of service. He adds he would be willing to finish his tour of duty if required. 3. He does not provide any additional evidence in support of his application. 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. After having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 28 September 1970. 3. His DA Form 20 (Enlisted Qualification Record - Part II) shows he served in Alaska from 19 March 1977 to 11 March 1979. 4. His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on the following occasions: a. On 22 December 1977, for willfully disobeying three lawful orders from two superior noncommissioned officers on or about 6 December 1977 and 7 December 1977 and failing to go at the time prescribed to his appointed place of duty on or about 11 December 1977. b. On 1 May 1978, for losing some of his TA-50, a value of about $59.37, on or about 18 April 1978. c. On 13 October 1978, for violating a lawful general regulation by leaving his weapon unsecure in his room on or about 12 October 1978. d. On 6 June 1979, for failing to go at the time prescribed to his appointed place of duty on or about 4 June 1979. 5. On an unknown date, court-martial charges were preferred against him for being AWOL from on or about 22 June 1979 to on or about 24 July 1979. 6. On 15 August 1979, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. a. In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him. b. He acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits. He also acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life. He elected not to submit a statement in his behalf. 8. On 27 August 1979, the appropriate authority approved his request and directed the issuance of an under other than honorable conditions discharge. 9. On 31 August 1979, he was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) shows he received an under other than honorable conditions character of service. It also shows he completed 2 years, 7 months, and 6 days of net active service during this period. 10. He appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 27 April 1983, after careful consideration of his military records and all other available evidence, the ADRB determined his discharge was proper. The Board denied his request for a discharge upgrade. REFERENCES: 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. 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. b. 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. c. 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: 1. The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. The records further show he admitted he was guilty of being AWOL from 22 June 1979 to 24 July 1979. The records show he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. 2. Based on his record of indiscipline (AWOL and four NJPs) his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. In accordance with Army Regulation 635-200, his service did not meet the criteria for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012109 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012109 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2