IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008203 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008203 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008203 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 discharge. 2. He states that he needs his discharge upgraded for the purpose of obtaining benefits. 3. He 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. On 30 July 1968, he enlisted in the Regular Army. The highest rank/grade he attained was private (PVT)/E-1. 3. His DA Form 20 (Enlisted Qualification Record) shows that after completing basic and advanced individual training he was placed in an absent without leave (AWOL) status. 4. He received two Article 15s and was reported AWOL on 8 occasions during his period of service. 5. A DD Form 458 (Charge Sheet), dated 16 July 1974, shows he was charged with four specifications of being AWOL from: * 14 January to 15 March 1969 * 29 May to 14 July 1969 * 5 August 1969 to 12 May 1970 * 9 June 1970 to 18 June 1974 6. The applicant was apprehended by civil authorities and returned to military control on 17 June 1974. 7. 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 Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the uniform code of military justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. He indicated he had not been subjected to coercion whatsoever by any person and made his request of his own free will. He elected to submit a statement on his own behalf. 8. In his request for discharge the applicant 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 Department of Veterans Affairs (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood he could face substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge. 9. He submitted a statement in support of his request for discharge, wherein, he indicated that he spoke very little English, he was always confused and did not fully understand the Article 15 that he received, which is why he went AWOL. He enjoyed military life but he was frustrated by the language barrier. 10. On 7 August 1974, the separation authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge. 11. On 16 August 1974, he was discharged accordingly. He completed a total of 10 months, and 24 days of creditable active military service and he had 1,879 days of lost time prior to his expiration term of service (ETS) and 1,047 days of lost time subsequent to his ETS. 12. 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. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that the applicant must have indicated he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. He must have acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 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: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The fact that the applicant struggled with a language barrier is noted; however, discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant committed numerous AWOL offenses for which he could have been tried by court-martial and sentenced to a punitive discharge under the UCMJ. 3. 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 reasons therefore were appropriate considering all the facts of the case. The available evidence is not sufficiently mitigating to warrant changing the characterization of his service to honorable or general under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008203 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008203 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2