IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015366 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: 23 February 2017 DOCKET NUMBER: AR20150015366 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: 23 February 2017 DOCKET NUMBER: AR20150015366 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 character of service. 2. The applicant states he would like to have his discharge upgraded. 3. The applicant provides his Under Other than Honorable Conditions Discharge Certificate, dated 16 January 1979. 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 18 June 1974. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 10 January 1977 for failing to go to his appointed place of duty at the prescribed time on 29 December 1976. 4. He was honorably discharged for immediate reenlistment on 16 June 1977. He reenlisted on 17 June 1977. 5. His record contains two DA Forms 4187 (Personnel Action), which show: a. His duty status changed from present for duty (PDY) to absent without leave (AWOL) on 12 April 1978. b. His duty status changed from AWOL to PDY on 13 April 1978. 6. He accepted NJP under the provisions of Article 15, UCMJ on 5 May 1978 for the following infractions: a. He failed to go to his appointed place of duty at the prescribe time on 17 March 1978. b. He failed to go to his appointed place of duty at the prescribed time on 23 March 1978. c. He disobeyed a lawful order for a commissioned officer to report to that commissioned officer on 24 March 1978. 7. His record contains three DA Forms 4187 (Personnel Action) which show: a. His duty status changed from “assigned not joined” to AWOL on 7 August 1978. b. His duty status changed from AWOL to dropped from the rolls (DFR) on 6 September 1978. c. His duty status changed from DFR to return to military control/present for duty on 2 October 1978. 8. His record contains a DD Form 458 (Charge Sheet) showing court-martial charges were preferred against him on 2 October 1978 for being AWOL from 7 August to 2 October 1978. 9. On 4 October 1978, he consulted with counsel and 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. a. In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him. b. He acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits. He also acknowledged 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 encounter substantial prejudice in civilian life. He elected to submit a statement in his own behalf. 10. On 4 October 1978, the applicant provided a statement in his own behalf, which reads: I would like a Chapter 10, because I have family or personal problem[s] at home in Burlington North Carolina (1) No place for my Family to live, (2) …not making enough money for family support (3) indebtedness to loan company 11. His record contains a report of mental status evaluation, dated 4 October 1978, which shows the medical official who examined him indicates: a. The applicant presented with normal behavior, and was fully alert. He was fully orientated and his mood was level. His thinking process was clear, his thought content was normal, and his memory was good. b. The medical official was of the impression that the applicant had no significant mental illness, he was mentally responsible, he was able to distinguish right from wrong and adhere to the right. Additionally, the applicant had the mental capacity to understand and participate in Board proceedings and met medical retention standards. 12. His record contains A Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Evaluation), dated 4 October 1978. These forms show the applicant claimed to be in good health and that the medical examination revealed he was medically qualified for separation. 13. On 4 October 1978, the applicant's immediate and intermediate commanders recommended approval of his request for discharge for the good of the service with the issuance of and Under Other than Honorable Conditions Discharge Certificate. 14. On 9 January 1979, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 10, and directed a discharge under other than honorable conditions and the applicant's reduction to private E-1. 15. On 16 January 1979, he was discharged accordingly. His DD Form 214 (Report of Separation from Active Service) shows he received an under other than honorable conditions character of service. It also shows he completed 1 year, 5 months, and 5 days of net active service during this period with 55 days of lost time. 16. There is no indication he applied to 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 a member who has 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. Paragraph 3-7b states 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 Board carefully considered the applicant's request for an upgrade of his service characterization. 2. The evidence of record reveals a history of NJP and AWOL. He was AWOL 55 days and during that period of lost time, he was dropped from Army rolls. Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for a general or an honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015366 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015366 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2