BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150005591 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 in effect that his under honorable conditions discharge (general) (correctly identified as under other than honorable conditions discharge) be upgraded to honorable. 2. He states he went absent without leave (AWOL) when he and his ex-wife were having marital problems. Prior to this time, he only had one Article 15 on his service record. He adds that part of the reason his company commander sought to court-martial him for his behavior was because he refused to salute him. He adds he was very young at the time of his court-martial/discharge and did not show respect to the military or his commanding officer. 3. He provides his DD Form 214 (Report of Separation 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. The applicant enlisted in the Army National Guard (ARNG) on 24 November 1975 at the age of 17 years and 6 months. On 20 November 1977, he was honorably released from the ARNG and involuntarily ordered to active duty in the U.S. Army Reserve which was accomplished the following day. 3. On 2 October 1978, a court-martial charge was preferred against him for being AWOL from 26 December 1977 to on or about 26 September 1978. 4. On 4 October 1978, he consulted with counsel and he 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. 5. In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him. He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life. He elected to submit a statement in his own behalf. 6. In his statement he said he was 20 years of age and he had completed the 9th grade. He stated he joined the Army because he wanted to learn a skill and he was unemployed. He added he was in the infantry and he wanted out of the Army because he could not adjust to military life. Additionally, he offered he had two kids he wanted to spend his life with. 7. On 24 October 1978, the appropriate authority approved his request and directed the issuance of an under other than honorable conditions discharge certificate. 8. On 4 December 1978, he was discharged accordingly. His DD Form 214 shows he received an under other than honorable conditions character of service. It also shows he completed 2 months and 26 days of net active service during this period with 274 days of time lost. 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 10. Army Regulation 635-200 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 under other than honorable conditions is normally considered appropriate. 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 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 records show the applicant was 17 years and 6 months of age at the time of his enlistment and 20 years and 6 months of age at the time of his discharge. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge. 2. The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The records further show he admitted he was guilty of being AWOL from 26 December 1977 to 26 September 1978. The records show he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. 3. His record of indiscipline includes 274 days of lost time which does not meet the standards of acceptable conduct and performance of duty for Army personnel. 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) AR20150005591 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005591 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1