BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160001099 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 BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160001099 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. BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160001099 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 upgrade of his under other than honorable conditions discharge to general under honorable conditions. He also requests to personally appear before the Board. 2. The applicant states he was in Fort Campbell, KY, when he went absent without leave (AWOL) in 1974 for about 1 week. He had a drinking and drug problem. He does not do any of that anymore and requests the Board's consideration of his request. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty) for the period ending 9 October 1975. 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 4 October 1974. He held military occupational specialty 11B (Light Weapons Infantryman). Following initial training, he was assigned to Fort Campbell, and he arrived on 8 February 1975. 3. He departed his Fort Campbell unit in an AWOL status on 24 February 1975 and returned to military control on 3 March 1975. 4. On 5 March 1975, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), based on being AWOL from 24 February to 3 March 1975. 5. He departed his Fort Campbell unit again in an AWOL status on 13 March 1975. On 18 March 1975, his Fort Campbell commander preferred court-martial charges against him for being AWOL starting 13 March 1975. No ending date of his AWOL was entered. 6. He remained absent until 31 July 1975 when he was apprehended by civil authority in Tennessee. He was returned to military control on 5 August 1975 and he was reassigned to the U.S. Army Personnel Control Facility, Fort Campbell. 7. The complete facts and circumstances surrounding his discharge action are not available for review, but his record contains a DD Form 214 showing he was discharged on 9 October 1975 under other than honorable conditions. * his DD Form 214 also shows he completed 7 months and 12 days of net active creditable service, with 147 days of lost time * the authority for separation was chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) showed "NA" (not applicable). 8. 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. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The available evidence shows the applicant was discharged in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. Discharges under this chapter are based on a voluntary request. 3. Although the applicant’s separation packet is not available for review, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would suggest otherwise. His character of service was commensurate with the reason for his discharge. 4. The applicant notes he had an alcohol and drug problem while on active duty and he appears to assert this contributed to his periods of AWOL. He contends he no longer abuses alcohol or drugs and, while this is significant, post-service conduct alone is not normally a basis for upgrading a characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001099 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001099 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2