IN THE CASE OF: BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150014766 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: 22 December 2016 DOCKET NUMBER: AR20150014766 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: 22 December 2016 DOCKET NUMBER: AR20150014766 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 under other than honorable conditions discharge to an under honorable conditions (general) discharge. 2. The applicant states he had a good record prior to his absence without leave (AWOL). 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge 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 23 April 1980 for a period of 3 years. His expiration of term of service (ETS) was 22 April 1983. He completed basic combat training and on 22 June 1980 he was assigned for advanced individual training (AIT) in military occupational specialty 94B (Food Service Specialist) to 3rd Battalion (BN), 5th Training Brigade, Fort Dix, NJ. 3. He was reported as AWOL from his assigned unit from 11 to 13 July 1980. 4. On 14 July 1980, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 11 to 13 July 1980 (3 days). He subsequently successfully completed AIT and was awarded MOS 94B. 5. On 27 August 1980, he was assigned to the 9th BN, 2nd Brigade, Fort Jackson, SC. 6. On 1 February 1981, he was reported as AWOL from his assigned unit and on 2 March 1981 he was dropped from the rolls as a deserter. 7. On 10 April 1984, he surrendered to military authorities at Fort Buchanan, Puerto Rico, and was assigned to the U.S. Army Personnel Control Facility, Fort Bragg, NC. 8. On 11 April 1984, court-martial charges were preferred against him for one specification of being AWOL from on or about 1 February 1981 to 10 April 1984 (3 years, 2 months, and 10 days). 9. On 11 April 1984, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a punitive 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 (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. a. In his request for discharge, he stated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. By submitting the request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense which authorized the imposition of a bad conduct discharge or dishonorable discharge. He stated that under no circumstances did he desire to perform further military service. b. He further acknowledged that he understood if the discharge request was approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate. He acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life. He declined to submit a statement on his own behalf. 10. His immediate commander subsequently recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate in view of the applicant's attitude toward the military and lack of rehabilitation potential. a. The commander stated the applicant had stated he desired elimination under chapter 10. He stated he had departed AWOL from Fort Jackson and his approximately 1,162 days of AWOL was due to financial, marital, personal, and adjustment problems. b. The applicant further stated he had problems adjusting to the Army because of difficulties with language. It seemed no one could understand him and he was always in trouble because when he did what he thought he was told to do it always seemed to be incorrect. He had enrolled in English as a Second Language (ESL) but it did not help. He had surrendered at Fort Buchanan and desired to be discharged. 11. On 13 April 1984, he was placed on excess leave pending the processing of his separation request. 12. On 30 April 1984, his senior commander recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 13. On 16 May 1984, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 24 May 1984, he was discharged accordingly. 14. The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service. He completed 10 months and 21 days of net active service of which 42 days was excess leave. He had a total of 3 years, 2 months, and 12 days of lost time including (2 years, 2 months, and 24 days) as of his ETS of 22 April 1983 and 354 days (11 months and 18 days) after his ETS. 15. His record is void of any evidence that shows he asked his chain of command for assistance with any issues/problems he may have had during his active duty service. 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. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 then in effect provided that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive. A discharge under other than honorable conditions was normally considered appropriate. b. 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. c. 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: 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 AR 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 separation 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 separation were appropriate considering all the facts of the case. 3. At the time of his discharge, he had served less than 1 year and had over 3 years of lost time due to being AWOL. Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel. This misconduct also rendered his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014766 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014766 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2