IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150004433 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 undesirable discharge. 2. The applicant states: a. He was proud to be a Soldier since his grandfather served in World War II and three brothers served during the Vietnam era. He was in a relationship with his high school sweetheart and they planned on having a family. b. After a year of service, she became pregnant. During her fifth month of pregnancy she was raped and lost the child. This event made him very angry, upset, and depressed. He wanted to take their lives in return. The situation affected their relationship and his military state of mind. He became a violent and resentful person and turned to alcohol and drugs to ease the pain. The Army was his last concern and his negative thinking led him to go absent without leave (AWOL) a month later. c. Years later he realized that this was the wrong thing to do and the decision has caused him to lose all of his military benefits. He has been married for 10 years and has five children. He has worked in the petroleum industry for the past 20 years and recently began a new career in welding. d. He requests the Board strongly consider his youth when determining whether or not to upgrade his discharge from under other than honorable conditions to a fully honorable discharge. 3. The applicant provides no 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 1980, at 17 years, 3 months, and 23 days of age. He completed training and he was awarded military occupational specialty 94B (Food Service Specialist). 3. On 26 January 1981, while serving in the rank of private first class, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 14 January 1981. His punishment consisted of a reduction in rank to private/E-2 (suspended) and forfeiture of $60.00 pay for one month. 4. On 6 February 1981, while serving in the rank/grade of private/E-2, he received NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 1 February 1981. His punishment consisted of a forfeiture of $100.00 pay for one month. 5. On 11 October 1983, court-martial charges were preferred against him for, without authority, absenting himself from his organization for the period of 24 April 1981 to 3 October 1983. 6. On 12 October 1983, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested 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. 7. In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his 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 that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He did not elect to submit a statement in his own behalf. 8. His record contains a memorandum, issued by his commander, dated 25 October 1983, in which it is noted the applicant had become disillusioned with the military and went AWOL due to personal reasons. Rehabilitation efforts were considered futile. 9. On 16 November 1983, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge. On 30 November 1983, the applicant was discharged accordingly. He completed 1 year, 5 months, and 15 days of total active service with lost time for the period 24 April 1981 through 2 October 1983. 10. 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. 11. 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. 12. Army Regulation 635-200, 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. 13. Army Regulation 635-200, 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 contention that his discharge should be upgraded was carefully considered. 2. Notwithstanding the applicant's service, sacrifices, and sincerity his record shows he was charged with the commission of an offense 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. 3. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He was AWOL from his organization from 24 April 1981 to 2 October 1983. Based on this record of indiscipline, the applicant's discharge accurately reflects his overall record of service. 4. The applicant was well over 18 years of age at the time of his AWOL offense. There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service. 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) AR20150004433 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004433 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1