IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150004449 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 that his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions. 2. The applicant states he was in an abusive situation caused by other Army personnel. Fearing for his life and with no one in his chain of command listening to him, he left. He knew not to return to the Army until the abusive Soldiers were most likely gone. He argues, in effect, that he was a good Soldier as evidenced by the two enlisted evaluations reports he provides. He had an average score of 4.6 in each performance trait out of a possible 5. Not one senior noncommissioned officer (NCO) attempted to assist him. Instead, he was told “suck it up Soldier.” Well, when people say “Your gonna be holding your guts in your hands when were done” or “It’s gonna be fun to watch you trip on ACID from sneaking it in your food-drink etc,” he freaked out. He was told by his NCOs that these were just pranks. However; after he got his first “ass whooping” he was gone. He knew these were not just pranks. Even if they were, what sick person would allow them to continue? He understands that he made a mistake by leaving and is asking for a fair shake. 3. The applicant provides copies of DA Forms 2166-5 (Enlisted Evaluation Report) signed on 24 October 1978 and 1 November 1978 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. On 15 March 1977, the applicant enlisted in the Regular Army. He completed his initial training as a cavalry scout. 3. On 16 June 1977, the applicant departed Fort Knox, Kentucky, for duty in the Federal Republic of Germany. He was subsequently assigned to the 3rd Battalion, 63rd Armor Regiment. 4. Records show the applicant was advanced through the ranks to specialist four, pay grade E-4, with a date of rank of 15 June 1978. 5. The applicant was absent without leave (AWOL) from 26 December 1979 to 9 June 1982 (approximately 897 days). 6. Records show the applicant was under military control on 10 June 1982 at Fort Ord, California, where he was placed in the personnel confinement facility. 7. On 20 August 1982, the applicant’s commander recommended his separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 14, for misconduct due to his continuous AWOL as discussed above. The entire separation packet is not available for review. 8. On 25 August 1982, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued an UOTHC discharge. 9. Accordingly, on 14 September 1982, the applicant was discharged UOTHC. He completed 3 years and 13 days of net active service his period. 10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. The two DA Forms 2166-5 provided by the applicant and filed in his Official Military Personnel File (OMPF) reported his performance of duty during the period from July 1977 through October 1978. Both reports show he had the same rating officials and that his performance and potential were rated better than average. Neither report contained anything derogatory. There is no evidence in his OMPF showing he received any subsequent evaluations. 12. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include a pattern of misconduct and commission of a serious offense. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. b. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. 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 contends that his UOTHC discharge should be upgraded to general, under honorable conditions, because he was abused by fellow Soldiers and feared for his life. 2. The record shows the applicant enlisted in the Regular Army in 1977 and progressed satisfactorily through the ranks to specialist four, pay grade E-4. The applicant’s evaluation reports show he knew how to Soldier and did so in more than just a satisfactory manner. He served on active duty for almost 3 years before his AWOL in December 1979. Because there is no available evaluation report for the period from November 1978 until his AWOL, it cannot be determined if he maintained the same level of duty performance. 3. The available evidence fails to show the circumstances under which he was returned to military control. Furthermore, there is no evidence showing that he informed anyone in his chain of command about his being abused or fearing for his life. There is no evidence showing he sought help from anyone such as a chaplain or Equal Opportunity Office. He has not provided any corroborating witness statements. 4. While the applicant’s administrative separation packet is only partially available, there is no indication of procedural errors which would tend to have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 5. The applicant's excessively long period of AWOL rendered his service unsatisfactory. In view of the foregoing, the applicant's request should be denied. 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) AR20110020309 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004449 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1