IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014596 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: 5 January 2017 DOCKET NUMBER: AR20150014596 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: 5 January 2017 DOCKET NUMBER: AR20150014596 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 (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect, he was an outstanding Soldier when he served; however, he became physically and mentally hurt at the time and his performance dropped off. He made the wrong decisions; however, he would now like closure and peace of mind. 3. The applicant provides a self-authored statement and a copy of his DD Form 214 (Report of Separation from Active Duty). 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 12 April 1978. 3. The applicant received non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 6 August through on or about 21 August 1978. 4. Court-martial charges were preferred against him on 27 October 1978 for being AWOL from on or about 1 September 1978 through on or about 24 October 1978. 5. The applicant consulted with legal counsel on 31 October 1978 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily 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. 6. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged UOTHC and be furnished an UOTHC Discharge Certificate. He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected to submit a statement on his own behalf, wherein he stated: * he was 19 years old and had a 9th grade education * he joined the Army because his parents wanted him to * he was an infantryman * he was asking for a chapter 10 because he couldn't take it anymore * he wanted to go his own way and to get married to his girlfriend * he believed that if he got out of the Army he could enjoy life again 7. His chain of command recommended approval of his request for discharge, and on 1 December 1978, the separation authority approved his request and directed the issuance of a UOTHC discharge. 8. The applicant was discharged accordingly on 10 January 1979. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial with his service characterized as UOTHC. 9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. DISCUSSION: 1. The evidence of record shows the applicant was AWOL from on or about 1 September 1978 through on or about 24 October 1978. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the discharge process. 2. His record of indiscipline during his brief period of service includes NJP for an AWOL offense and court-martial charges for another AWOL offense. Based on his record, the separation authority determined his service would be characterized as under other than honorable conditions. 3. 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. 4. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014596 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014596 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2