BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006554 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, an upgrade of his under other than honorable conditions discharge. 2. The applicant states: a. His official military personnel file (OMPF) shows that he requested a discharge for the good of the service - in lieu of trial by court-martial for being absent without leave (AWOL) and that if he returned to duty he would go AWOL again. Furthermore, it lists that he was sent a letter by the Department of Veterans Administration (VA), dated 19 July 1979, asking for compelling reasons for being AWOL. b. He was waiting on orders for his transfer to his next unit after basic training (BT) and advanced individual training (AIT). In lieu of waiting on orders, he contacted the personnel section at the nearest base and was instructed to wait on his orders. While he was waiting for his orders, he was reported AWOL. c. When he returned to Fort Ord, CA, he was forced to sign a request for discharge (under other than honorable conditions) to stave off a trial by court-martial. It was his understanding at the time that this was a temporary issue and the real matter at hand was trying to get his orders for his transfer. He now understands that he was made to sign all the paperwork necessary to exit the military. He feels he was forced to exit the military because of someone else's mistake and failure to provide him with new assignment orders. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * DA Form 2-1 (Personnel Qualification Record) * DA Form 2 (Personnel Qualification Record - Part 1) * a chapter packet * DD Form 458 (Charge Sheet) * three DA Forms 2496 (Disposition Form), dated between 28 February and 5 March 1979 * five DA Forms 4187 (Personnel Action), dated between 1 and 9 March 1979 * VA Regional Office Administrative Decision document * a Central CA Clinic form, dated 5 August 2013 * a transmittal cover sheet, dated 2 October 2013 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 27 April 1978. On 5 May 1978, he was assigned for BT to Company A, 2nd Battalion, 1st Training Brigade, Fort Knox, KY. He completed BT and on 10 July 1978 he was assigned for AIT to Company D, 2nd Battalion, 1st Training Brigade, Fort Knox. He subsequently completed AIT. 3. Orders 160-164, dated 21 August 1978, issued by Headquarters (HQ), U.S. Army Armor Center and Fort Knox, relieving him from Company D, 2nd Battalion, 1st Training Brigade, and assigning him to Headquarters and Headquarters Detachment (HHD), 21st Replacement Battalion, Germany. This orders stated his report date was in accordance with his port call and information concerning his port call would be provided separately. 4. His DA Form 2-1 shows he departed Fort Knox on 1 September 1978 enroute to U.S. Army Europe (USAREUR). He was reported as AWOL on 22 September 1978 for failing to report to HHD, 21st Replacement Battalion, Germany. He was subsequently dropped from the rolls (DFR) as a deserter. 5. The applicant provides a DA Form 4187, dated 1 March 1979, wherein it shows his duty status was changed from DFR to present for duty on 27 February 1979. It stated he had surrendered to military authorities at the AWOL Apprehension Section, Fort Ord, CA, and shows he was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Ord. This form also stated he was DFR from the 21st Replacement Battalion, Germany. He provides additional DA Forms 4187 to show the DFR entry was subsequently deleted. 6. On 27 February 1979 court-martial charges were preferred against him for being AWOL from his assigned unit from 22 September 1978 to 27 February 1979. 7. On 1 March 1979 the applicant consulted with legal counsel. He was advised by his legal counsel that: a. He (legal counsel) had been informed the applicant desired to submit a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. However, prior to permitting him to do so he wanted to advise him of his rights. He (legal counsel) also wanted to make it clear that if he did request a discharge for the good of the service, it must be his voluntary choice. No person could make, force, or coerce him to ask for this discharge (emphasis added). He could only make the request because he was pending charges which authorized the imposition of a dishonorable or a bad conduct discharge. b. If his request was accepted, he would normally be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate. As a result, he would be deprived of many or all Army benefits, many or all benefits administered by the VA, and of benefits under both Federal and State law. c. He must also warn him (the applicant) against widespread rumors that a discharge under other than honorable conditions could easily be changed to an honorable discharge after his separation, or that after a certain time it automatically would be upgraded to honorable. These were false rumors. It was likely that if he was issued an under other honorable conditions discharge, the discharge would remain with him for the rest of his life. 8. The applicant signed this form on 1 March 1979, acknowledging receipt of his legal counsel's advice concerning a discharge for the good of the service - in lieu of trial by court-martial. 9. On 1 March 1979 after consulting with legal counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. In his request he stated, in part: a. He was making the request of his own free will and had not been subjected to any coercion whatsoever by any person and had been advised of the implications that were attached to it. He acknowledged he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge. Moreover, he hereby stated that he had no desire to perform further military service. b. Prior to completing the form, he had consulted with military counsel who had fully advised him of the nature of his rights under the Uniform Code of Military Justice (UCMJ), the elements of the offense with which he was charged, and the maximum permissible punishment if found guilty. Although he had been furnished with legal advice, the decision was his own. c. He understood if his request for discharge was accepted he may be discharged under other than honorable conditions, he would be deprived of many or all benefits under both Federal and State law, and he may expect to encounter substantial prejudice in civilian life. He declined to submit a statement on his own behalf. 10. The applicant provides a DA Form 2496, dated 5 March 1979, wherein it shows he completed a separation physical on 2 March 1979, and was found qualified for separation. 11. On 6 March 1979 he was placed on excess leave pending the processing of his request for discharge for the good of the service. 12. On 14 March 1979 his immediate commander recommended approval of his request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. She stated the applicant enlisted on 27 April 1978 for a new experience and to travel. He was pending one AWOL from 22 September 1978 to 27 February 1979 from Germany. He went AWOL because he could not adjust to being in the military and felt he could do better in the civilian community. He stated if he returned to duty he would go AWOL again. 13. On 15 and 20 March 1979 his intermediate and senior commanders recommend approval of his request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 14. On 21 March 1979 the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 4 April 1979 he was discharged accordingly. 15. The DD Form 214 he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service. He completed 11 months and 9 days of net active service of which 30 days (1 month) was excess leave and he had 158 days (5 months and 8 days) of lost time due to being AWOL. 16. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 17. The applicant provides a/an: a. VA Administrative Decision document dated 26 November 1979 wherein it shows, in part, based on his discharge under other than honorable decisions he was not entitled to VA benefits other than health care benefits for disabilities found to be service-connected. b. Central California Clinic coversheet, dated 5 August 2013, wherein it shows he was seen in the clinic on that date for a follow-up to medical issues and a sleep study referral for borderline sleep apnea. 18. 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 included 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. An under other than honorable conditions discharge was normally considered appropriate. a. 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. b. 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. As such, he voluntarily requested a discharge to avoid a trial by court-martial. Notwithstanding his contention that mistakes were made, the evidence of record and the evidence he provided shows his administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 3. Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel. His misconduct also renders his service unsatisfactory. As such, there is an insufficient evidentiary basis to upgrade his discharge. 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) AR20150006554 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006554 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1