IN THE CASE OF: BOARD DATE: 16 DECEMBER 2016 DOCKET NUMBER: AR20160000916 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 16 DECEMBER 2016 DOCKET NUMBER: AR20160000916 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 under other than honorable conditions (UOTHC) to general under honorable conditions. 2. The applicant states: a. He was having family problems with his parents and he told his commander; however, he was not granted leave. b. He was absent without leave (AWOL) for a few days and upon returning, his commander told him that if he wanted to get out of the Army to stay gone for 31 days to be classified as a deserter. 3. The applicant 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. The applicant enlisted in the Regular Army on 10 January 1980. 3. On 3 March 1980, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty at the time prescribed on or about 20 February 1980. 4. DA Forms 4187 (Personnel Action) show his duty status changes and the following comments: * 18 August 1980 - present for duty to AWOL * 2 September 1980 - AWOL to present for duty * 8 September 1980 - present for duty to AWOL * 18 September 1980 - AWOL to present for duty * 20 September 1980 - present for duty to AWOL * 23 September 1980 - AWOL to civil confinement (arrested for automobile theft at Hammond, IN) * 7 October 1980 - civil confinement to present for duty (no civil action taken) * 26 October 1980 - present for duty to AWOL (applicant was given a travel ticket to Fort Riley, KS, from Fort Knox, KY, on 22 October 1980) * 25 November 1980 - AWOL to dropped from (Army) rolls * 9 January 1981 - dropped from (Army) rolls to attached (applicant surrendered to military authorities at Fort Sheridan, IL, on 9 January 1981) 5. On 15 January 1981, charges were preferred against him for being AWOL on or about 26 October 1980 to 9 January 1981. 6. His DA Form 3822-R (Report on Mental Status Evaluation), dated 16 January 1981, shows he had the mental capacity to understand and participate in proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 7. He signed a statement, undated, in which he acknowledged AWOL was a violation of Article 86, Uniform Code of Military Justice, and he could be punished for the offense, prior offenses, and further offenses; that AWOL was inexcusable in all but most rare cases; and that there was no good reason whatsoever for him to be AWOL from his unit. 8. On 16 January 1981, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge; the effects of requesting discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10; and the rights available to him. 9. 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, chapter 10. He acknowledged his guilt and that: * although he was furnished legal advice, the decision was his own * he understood he could be discharged UOTHC * as a result of such a discharge, he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Veteran's Administration * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge 10. He submitted a statement, undated, in support of his request for discharge under the provisions of Army Regulation 635-200, chapter 10. He stated: a. He was 18 years of age and he completed 10.5 years of education. He joined the Army because he was forced to or go to jail because of some minor problems with the police. b. He wanted to get an education and to be somebody. He did not pick his military occupational specialty 19F (Tank Driver). He had to take what was available because he had to be in the Army by a certain date or go to jail. c. He wanted to get out of the Army because his father came down with emphysema and he was old. He did not want to get out of the Army; he just wanted to be stationed closer to home and he had no guarantee, so he chose discharge. 11. His chain of command recommended approval of his request for discharge under the provision of Army Regulation 635-200, chapter 10, with his service characterized as UOTHC. 12. On 17 February 1981, the separation authority approved the applicant's request for discharge for the good of the service, directed the issuance of a Discharge Certificate Under Other Than Honorable Conditions, and ordered his reduction to private/E-1 prior to execution of his discharge. 13. Headquarters, U.S. Army Personnel Control Facility, U.S. Armor Center and Fort Knox, Orders 36-12, dated 24 February 1981, show he was reduced from the rank/grade of private/E-2 to private/E-1 effective 17 February 1981. 14. On 17 March 1981, he was discharged accordingly. His DD Form 214 shows he completed 10 months and 14 days of creditable active military service and he had lost time during the periods 18 August 1980 to 1 September 1980, 8 September 1980 to 17 September 1980, 20 September 1980 to 6 October 1980, and 26 October 1980 to 8 January 1981. 15. On 20 May 1985, the Army Discharge Review Board denied his request for an upgrade of his discharge. 16. His records are void of and he failed to provide any evidence his presence was required at home in accordance with Army Regulation 600-8-10 (Leaves and Passes). REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. 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. 2. Army Regulation 600-8-10 states Soldiers may be authorized emergency leave for up to 30 days for emergency situations within the immediate family. Soldiers may request emergency leave with or without American Red Cross verification. The unit may request verification through the Field Director, American Red Cross or, if necessary, from the military activity nearest the location of the emergency, if they doubt the validity of a situation or of the necessity of the Soldier's presence. DISCUSSION: 1. The applicant contends he was young, his father had emphysema, he had family problems with his parents, and his commander told him to stay in an AWOL status for 31 days if he wanted to get out of the Army. 2. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Although his father had emphysema, this factor is not sufficiently mitigating to support an upgrade of his discharge. Further, his record is void of and he failed to provide evidence that his presence was required at home in accordance with Army regulation. 3. He contends he did not want to get out of the Army; however, since there was no guarantee he could get stationed closer to home, he chose discharge. Assignment of Soldiers is based on the needs of the Army. 4. 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 consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 5. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160000916 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000916 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2