BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150005389 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 discharge. 2. The applicant states he was discharged because of his health. He contends that he was not able to walk properly and took the discharge but he feels that he should have received at least an under honorable conditions (general) discharge. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty), effective 21 February 1979. 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 17 January 1978, the applicant enlisted in the Regular Army. He failed to complete his initial entry training. 3. On 11 April 1978, he dropped a bed on his foot and he was treated at the Fort Lee, VA, Emergency Room, for a fractured right first toe. 4. A DD Form 458 (Charge Sheet), dated 24 January 1979, shows he was charged under the Uniform Code of Military Justice (UCMJ) with being absent without leave (AWOL) from 5 June 1978 to 23 January 1979. 5. On 24 January 1979, the applicant consulted with counsel who advised him of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him. 6. After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. a. He acknowledged that: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood he could be discharged under other than honorable conditions * as a result of such a discharge, he would be deprived of many or all Army benefits and would be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge b. He indicated he would not submit a statement in his own behalf. 7. As part of his discharge processing the applicant underwent a separation physical. He completed a Report of Medical History wherein he answered “NO” to the question “Have you ever had or have you now foot problems?” 8. Upon review of his request for discharge, his commander stated that the applicant had two Article 15s and was apprehended by civil authorities. The applicant stated that he went AWOL because he was having family problems and he could not adjust to his military obligations. He desired to get out of the Army with a less than honorable discharge. 9. On 12 February 1979, the separation authority approved the applicant's request and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trail by court-martial with an under other than honorable conditions characterization of service. 10. He was discharged accordingly on 21 February 1979. He completed 5 months and 16 days of total active service with 229 days of lost time. 11. There is no indication in his records that he petitioned the Army Discharge Review Board for 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. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge normally was furnished an individual who was discharged for the good of the Service. b. 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. 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. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The record shows the applicant was charged with being AWOL in excess of 200 days, a charge for which he could have been tried by court-martial and sentenced with a punitive discharge under the UCMJ. 2. His contention that he only requested a discharge because he could not walk is not supported by the available evidence and his record shows he was well advised and fully aware of the consequences of his decision to request discharge in lieu of court martial. Of note, he received medical treatment for a fractured right toe during his period of service. 3. There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service to honorable or under honorable conditions. 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) AR20150005389 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005389 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1