BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005809 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 (UOTHC) characterization of service. 2. The applicant states his absence from duty was caused by problems at home and excessive drinking. He has since conquered his drinking problem. His drinking caused him a lot problems. He served 21 months in the Army and he still uses the things he learned in everyday life. He is 62 years old and embarrassed about his discharge. 3. The applicant provides three letters of support. 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 25 September 1972 and held military occupational specialty 62L (Wheel Tractor Operator). 3. The available evidence indicates he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 14 May 1973 for being absent without leave from 7 May 1973 through 14 May 1973. 4. A DD Form 458 (Charge Sheet), dated 22 August 1980, shows he was charged with the following: * failing to go to his appointed place of duty on 25 January 1974 and 26 January 1974 * being absent without leave (AWOL) from 5 February 1974 through 21 February 1974 and 26 February 1974 through 14 March 1974 5. On 14 March 1974, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of a UOTHC discharge, and of the procedures and rights available to him. 6. After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). a. He acknowledged that: * he could request discharge for the good of the service because a charge had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge * he was guilty of the charge against him or a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge * under no circumstances did he desire further rehabilitation for he had no desire to perform further military service * he understood he could be issued an UOTHC discharge * as a result of such a discharge, he would be deprived of many or all Army benefits and might 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 Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge b. He indicated he would not submit statements in his own behalf. 7. A DD Form 3822-R (Report of Medical Status Evaluation), dated 26 March 1974, showed: * his behavior was normal * he was fully alert * his mood was level * his thinking process was clear * his thought content was normal * his memory was good * he had the mental capacity to understand and participate in the proceedings * he was mentally responsible * he had no significant metal illness 8. The separation authority approved his request and directed that he receive a UOTHC discharge and reduction to the lowest enlisted grade. 9. On 7 May 1974, he was discharged accordingly. His DD Form 214 for this period of service shows he completed 1 years, 6 months, and 4 days of net active service for this period, with 39 days of lost time. He was discharged in the rank/grade of private/E-1. 10. On 13 February 1975, the Army Discharge Review Board denied his request for an upgrade of his UOTHC discharge. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 UOTHC discharge is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge (HD) 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 HD. DISCUSSION AND CONCLUSIONS: 1. The applicant was charged with being AWOL on two separate occasions and failing to go to his appointed place of duty on two separate occasions. 2. He was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial. 3. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation appear to have been met, and that the rights of the applicant were fully protected throughout the separation process. His record of misconduct supports the separation authority's decision to characterize his service as UOTHC. 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) AR20150005809 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005809 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1