IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150011037 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: 21 April 2016 DOCKET NUMBER: AR20150011037 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: 21 April 2016 DOCKET NUMBER: AR20150011037 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, correction of his DD Form 214 (Report of Separation from Active Duty) by showing that his general discharge was upgraded to fully honorable. 2. The applicant states he has grown, and now understands his behavior as a youth during his active service was without merit; however, he has overcome obstacles dealing with personal issues which have helped him to engage all of his fears that caused him to react negatively. He has changed his entire life in a positive way. He is now favorable to his fellow comrades and to others as well. 3. The applicant provides copies of his: * DD Form 214 * DD Form 215 (Correction to DD Form 214) 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 5 November 1964, the applicant, at the age of 23 years and 8 months, enlisted in the Regular Army. He completed his initial training as a truck vehicle mechanic. 3. A DA Form 20 (Enlisted Qualification Record) shows the applicant was absent without leave (AWOL) for: * 13 days from 15 to 27 December 1964 * 147 days from 1 June to 25 October 1965 4. On or about 2 February 1976, charges were preferred against him under the Uniform Code of Military Justice for violation of Article 86, being AWOL, from on or about 10 December 1967 to 29 January 1976 (2,972 days). 5. On 6 February 1976, the applicant consulted with legal counsel and 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. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 6. After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for 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 acknowledged he had been advised of and understood his rights under the UCMJ; and that he could receive an under other than honorable characterization (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran; and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge. 7. On 8 March 1976, the applicant’s battalion commander stated that the applicant had become embroiled in personal problems after his return from the Republic of Vietnam. He went AWOL and remained so for just over 8 years. During this absence, he started a family and became a productive member of society. The commander did not see that punishment would serve any useful or constructive purpose. He recommended the applicant receive a general, under honorable conditions discharge. 8. On 11 March 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 257A (General Discharge Certificate). On 16 March 1976, the applicant was discharged accordingly. He had completed a total of 3 years, 2 months and 20 days of creditable active military service and accrued 2,972 days of time lost due to AWOL. 9. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 2. Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 (emphasis added), 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION: 1. The applicant contends that his DD Form 214 should be corrected by showing that his discharge under honorable conditions was upgraded to honorable because he was young and needed to gain wisdom. 2. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The applicant was 23 years of age and had satisfactory completed training. His satisfactory performance demonstrated his capacity to serve and shows that he was neither too young nor immature. 3. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met. The rights of the applicant were fully protected throughout the separation process. 4. The evidence further shows that the command fully considered the applicant’s good citizenship while AWOL and decided to grant him a general, under honorable conditions characterization vice the more usual characterization of under other than honorable conditions. 5. The type of discharge and reason therefore were appropriate considering all of the facts of the case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011037 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011037 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2