IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150005215 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 characterization of service from under other than honorable conditions to honorable. 2. The applicant states he was notified by the Red Cross that he must return home because his brother was in the hospital and not expected to live. After he returned home his brother passed away. He was having a difficult time because of his brother's death and the fact that his wife filed for divorce. He began drinking heavily and did not return to his unit; he was absent without leave (AWOL). Once he sobered up, he began thinking clearly and turned himself in to the authorities. While he was at Fort Polk, Louisiana, his counsel advised him to request a discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He was advised this would be the quickest way to process his discharge and that his characterization of service would automatically be upgraded in 6 months. With the exception of his period of AWOL service, his record reflects he was a good Soldier; his previous performance should be considered. 3. The applicant provides a self-authored statement. 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 2 November 1977 and was honorably discharged for immediate reenlistment on 12 August 1979. He subsequently reenlisted on 13 August 1979 3. Orders Number 240-34, issued by the 259th Personnel Service Company, Germany, on 4 October 1979, directed the applicant's permanent change of station move to Fort Polk, Louisiana. His reporting date was listed as 20 March 1980 and his available date was listed as 14 February 1980. However, these orders were later amended by Orders Number 22-1, issued by the 259th Personnel Service Company, Germany on 25 January 1980. These orders amended as follows: "Amended to read: Reporting date: 28 February 1980; Availability date: 25 January 1980; [and] His record Amended to add: Additional instructions: (h) Service member is authorized EMERGENCY LEAVE: URGENT." 4. His record contains several DA Forms 4187 (Personnel Action), dated 13 June 1980. These forms show his duty status was changed from "Intransit-In" to "Assigned not Joined" on 28 February 1980; however, as he failed to report on 28 February 1980, his duty status was subsequently adjusted to AWOL. He later surrendered to military authorities and his duty status was changed from AWOL to Present for Duty on 3 June 1980. 5. His record contains a DA Form 458 (Charge Sheet) showing court-martial charges were preferred against him for being AWOL, from on or about 28 February 1980 to on or about 3 June 1980. 6. His record contains two endorsements, dated 23 June 1980 and 25 June 1980, which show both his immediate and intermediate commanders recommended he receive a bad conduct discharge as a result of a special court-martial. 7. He voluntarily requested discharge for the good of the service on 24 July 1980, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ, which authorized the imposition of a bad-conduct or dishonorable discharge. He stated he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. a. He acknowledged that prior to completing his request for discharge he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses which he was charged, any relevant lesser included offenses, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; possible defenses which appeared to be available at the time; the maximum permissible punishment if found guilty and of the legal effect, and the significance of his suspended discharge. b. He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate. He also acknowledged he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authorities consent or, without the separation authorities consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. 8. He requested to withdraw his request for discharge for the good of the service on 4 August 1980. His request was received by the Staff Judge Advocate that same day. 9. His request to withdraw his requested discharge under the provisions of Army Regulation 635-200, chapter 10 was denied by the separation authority on 7 August 1980. The separation authority approved his request for discharge on 7 August 1980, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, and directed he receive an under other than honorable conditions discharge. It is unclear whether the separation authority denied his request before or after his separation was approved. 10. Accordingly, he was discharged on 15 August 1980. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and he received an under other than honorable conditions discharge. He completed 9 months of net active service this period during the period covered by this DD Form 214 with 96 days of time lost from 28 February 1980 to 3 June 1980. 11. There is no indication he applied to the Army Discharge Review Board to request an upgrade of his discharge within that board's 15-year statute of limitations. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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 request for an upgrade of his characterization of service from under other than honorable conditions to honorable was carefully considered. 2. The evidence of record indicates there was an emergency situation, for which the applicant was authorized to take emergency leave. However, it also indicates he was supposed to report to his new duty station on 28 February 1980, prior to beginning his emergency leave. Additionally, there is no indication he made any attempt to work with his new unit regarding his situation or absence. The evidence of record also shows he was AWOL for 96 days and, upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He did later attempt to withdraw this request, but his request was denied. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for a general or an honorable characterization of 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) AR20150005215 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005215 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1