IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150006615 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 his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states he visited with a recruiter and discussed leaving college and joining the Army to become a warrant officer (WO). He entered the Army in November 1978 with the understanding he would become a WO. He completed basic combat training (BCT) and was trained as a supply clerk. When he asked the first sergeant about WO training, he was told he would receive it at his next duty station. When he was assigned to his next duty station, he was assigned as a supply clerk. He again inquired about WO training and was told there were no orders for that training. He felt there was a breach of agreement and realized the Army never intended to honor the agreement so he left (i.e. went absent without leave (AWOL)). He was reprimanded for going AWOL and received a general discharge (i.e. under other than honorable conditions discharge). 3. The applicant provides no additional evidence. 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's DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States), dated 28 September 1978, shows he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on that date for the U.S. Army Training of Choice Enlistment Option. A DA Form 3286-4b (Statements for Enlistment - DEP), dated 28 September 1978, shows he enlisted for training in military occupational specialty (MOS) 76D (Material Supply Specialist). He was discharged from the USAR DEP on 13 November 1978. 3. He enlisted in the Regular Army on 14 November 1978. He completed BCT and advanced individual training (AIT) and he was awarded MOS 76D. On 7 May 1979, he was assigned to the 1st Battalion, 40th Field Artillery Regiment, in Germany. 4. On 31 July 1979, he was reported as AWOL from his assigned unit and on 30 August 1979 he was dropped from the rolls (DFR) as a deserter. 5. On 13 September 1979, he was returned to military control at Fort Polk, LA. On 25 September 1979, he was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Sill, OK. 6. In October 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 31 July to 12 September 1979 (44 days). This Article 15 is not available for review with this case. 7. On 31 October 1979, he was assigned to the 2nd Battalion, 69th Armor Regiment, Fort Benning, GA. On 6 May 1980, he was reported as AWOL from his assigned unit and on 6 June 1980 he was DFR as a deserter. 8. On 3 March 1981, he was returned to military control and assigned to the PCF, Fort Bragg, NC. 9. On 5 March 1981, court-martial charges were preferred against him for being AWOL from 6 May 1980 to 3 March 1981 (301 days). 10. On 18 March 1981, he underwent a mental evaluation. The DA Form 3822 (Report of Mental Status Evaluation), dated 18 March 1981, shows the examining doctor found his behavior was normal, he was fully alert and oriented, his thinking process was clear, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 11. On 18 March 1981, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he 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. 12. In his request for discharge, he acknowledged he understood if the discharge request was approved, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate. He also acknowledged he understood 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 expect to encounter substantial prejudice in civilian life. 13. On 20 March 1981, he was placed on excess leave pending the processing of his request for a discharge. 14. On 23 March 1981, his immediate and senior commanders recommended approval of his request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 15. On 3 April 1981, the Chief, Criminal Law Division, Fort Bragg, forwarded the applicant’s discharge request to the separation authority and stated the applicant’s record showed he had received one Article 15 and no courts-martial. 16. On 7 April 1981, the separation authority approved his request for a discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 15 April 1981, he was discharged accordingly. 17. The DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 1 year, 5 months, and 23 days of net active service of which 27 days was excess leave and he had 345 days (or 11 months and 15 days) of lost time due to being AWOL. 18. On 7 June 1989, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable. 19. 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 was issued to a Soldier whose military record was 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. 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. Contrary to his contention, his enlistment contract did not include any promises for WO training. It promised training in MOS 76D, which he received. There was no breach of contract as he contends. 4. His record of service shows he first went AWOL for 44 days and subsequently went AWOL for 301 days. He had almost 1 year of lost time at the time of his discharge. Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory and does not meet the criteria for an honorable 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) AR20150006615 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006615 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1