IN THE CASE OF: BOARD DATE: 16 DECEMBER 2016 DOCKET NUMBER: AR20160001645 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: AR20160001645 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. 2. The applicant states he need his discharge upgraded to qualify for benefits from the Department of Veterans Affairs. 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 24 June 1976. 3. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the following offenses: * 29 December 1976, for absenting himself without authority from his unit on or about 21 December until 27 December 1976 * 12 May 1978, for absenting himself without authority from his appointed place of duty on or about 10 April 1978 until 1 May 1978 4. A DD Form 458 (Charge Sheet) shows he was charged on 19 September 1979 with absenting himself from his organization without authority on or about 26 March 1979 until on or about 23 August 1979. 5. His DA Form 3822-R (Report of Mental Status Evaluation), dated 13 September 1979, shows he did not have a significant mental illness, he was mentally responsible, he was able to distinguish right from wrong, he was able to adhere to the right, he had the mental capacity to understand and participate in board proceedings, and he met the retentions standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 6. On 19 September 1979, 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 (Personnel Separations - Enlisted Personnel), chapter 10. He consulted with counsel 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 a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf. 7. On 10 October 1979, he was discharged under other than honorable conditions. His DD Form 214 shows he completed 2 years, 9 months, and 23 days of total active service. 8. There is no indication he petitioned the Army Discharge Review Board for a review 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 sentence 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 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 applicant's records show he was absent without leave on three occasions totaling over 170 days. These offenses are punishable under the UCMJ with a punitive discharge. 2. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service 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. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160001645 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001645 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2