BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160003354 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: 12 September 2017 DOCKET NUMBER: AR20160003354 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: 12 September 2017 DOCKET NUMBER: AR20160003354 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 (UOTHC) discharge to an honorable discharge. 2. The applicant states he and his wife married while they were young. They had a child they were not ready for, which "pushed [them] over the top." He went absent without leave (AWOL), because he thought "the problem would go away." Prior to this event, he was a good Soldier. 3. The applicant provides copies of two DD Forms 214 (Reports of Separation from Active Duty) and a DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. A DD Form 214 shows the applicant enlisted in the Regular Army (RA) on 4 August 1972 and he was honorably discharged on 21 August 1974 for immediate reenlist in the RA. He had completed 2 years and 3 days of net active service this period that included 1 year, 5 months, and 17 days of foreign service in Germany. It also shows he: * was awarded military occupational specialty 13B (Field Artillery Crewman) * had 15 days of time lost (15 through 29 March 1973) * was promoted to specialist four (SP4)/pay grade E-4 on 1 March 1974 3. A DD Form 214 shows the applicant reenlisted in the RA on 22 August 1974, he was honorably released from active duty on 25 August 1977, and transferred to the U.S. Army Reserve Control Group (Reinforcement). He had completed 3 years and 3 days of net active service this period that included 3 months and 12 days of foreign service in Germany. It also shows he: * was promoted to sergeant (SGT)/pay grade E-5 on 27 March 1975 * had 1 day of time lost (15 September 1976) * was awarded the – * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars 4. On 9 July 1979, after a break in service, the applicant entered the RA for a period of 4 years. At the time he was 24 years of age, he was married, and he had a daughter (who was born in April 1978). 5. On 3 March 1980, he accepted nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for failing to go at the time prescribed to his appointed place of duty on 4 February 1980 (two specifications) and for being AWOL from 11 through 19 February 1980. His punishment included reduction to SP4 (E-4) (suspended), a forfeiture of $100 pay for 2 months and 10 days of restriction and extra duty. 6. On 25 June 1980, he accepted NJP for violation of the UCMJ, Article 86, for being AWOL from 7 March to 28 May 1980. His punishment included a forfeiture of $100 pay for 2 months and 14 days of restriction and extra duty. The punishment was suspended until 15 July 1980. 7. On 6 March 1981, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL from 2 October 1980 to 3 March 1981. 8. On 9 March 1981, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged with an UOTHC Discharge Certificate. d. He was also advised that he could submit statements in his own behalf. He elected to submit a statement in his own behalf. In response to the question, "Why did you commit the offense(s) currently charged?" he stated, "Personal problems between myself and my wife, we were always fighting. She said I never have time to be with my family. I am not adjusted to the Army like I was before." e. The applicant and his counsel placed their signatures on the statement of consulting counsel on 9 March 1981. 9. On 20 March 1981, the separation authority approved the applicant's request for discharge for the good of the service, reduced him to the lowest enlisted grade (E-1), and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate. 10. A DD Form 214 shows the applicant entered active duty this period on 9 July 1979 and he was discharged on 23 April 1981 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, based on conduct triable by court-martial with an UOTHC character of service. He had completed 1 year, 1 month, and 15 days of net active service during this period. 11. On 5 May 1986, the Army Discharge Review Board (ADRB) considered the applicant's request for upgrade of his discharge. The ADRB determined that the reason for his discharge and the character of his service were both proper and equitable. The ADRB denied the relief requested by the applicant. REFERENCES: AR 635-200, in effect at the time, 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 UOTHC is normally considered appropriate. 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. c. Chapter 3, 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: 1. The applicant contends his discharge should be upgraded because he and his wife were young when they had their first child, which caused conflict in their marriage, and this caused him to go AWOL. 2. Two DD Forms 214 document the applicant's honorable active service in the RA from 4 August 1972 through 25 August 1977. 3. The applicant reentered active duty in the RA on 9 July 1979. At the time he was 24 years of age, he was married, and he and his wife had a daughter. a. It is noted the applicant offered a statement in his own behalf at the time he submitted his request for discharge in lieu of trial by court-martial. He acknowledged he and his wife were constantly fighting. He also stated he had not adjusted to the Army like he had during his prior period of military service. b. He went AWOL on three separate occasions during the period of service under review. c. There is no evidence of record that shows the applicant sought family counseling during the period of service under review. 4. The applicant's request for discharge UP AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 5. The evidence of record also shows court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL from 7 March to 27 May 1980, for a period of 152 days (i.e., more than 5 months). a. He was reduced to the lowest enlisted grade (E-1) and he failed to complete his 4-year active duty service obligation. b. The ADRB found his discharge and the character of his service were both proper and equitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003354 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003354 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2