IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160005074 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: 4 January 2018 DOCKET NUMBER: AR20160005074 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: 4 January 2018 DOCKET NUMBER: AR20160005074 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 character of service from under other than honorable conditions to under honorable conditions (general). 2. The applicant states he was mentally immature throughout the duration of his service in the U.S. Army. He claims, had he been more mature, his outlook on military service would have been different. He further states he has matured and is a good citizen. 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 23 January 1968, at just under 19 years of age. 3. His records contain Special Court-Martial Order Number 380, issued by Headquarters, Fourth Combat Support Training Brigade, U.S. Army Training Center, Infantry, Fort Ord, CA, dated 18 July 1968, which shows a special court-martial convicted him of violating: a. Article 86, Uniform Code of Military Justice (UCMJ), for without authority, absenting himself from his unit from 20 April to 9 May 1968; from 12 to 30 May 1968; and from 1 to 12 June 1968; and b. Article 134, UCMJ, for breaking restriction on 12 May and 1 June 1968. 4. The applicant pled guilty and he was found guilty of the charges. He was sentenced to confinement at hard labor for 4 months and to forfeit $68.00 per month for 4 months. His sentence was adjudged on 17 July 1968 and approved on 18 July 1968. 5. The applicant's records contain DA Form 188 (Extract Copy of Morning Report), dated 5 November 1968, which states the applicant was reported absent without leave (AWOL) from the 5th Correctional Training Unit, Fort Riley, KS, on 1 October 1968. 6. Evidence shows the applicant surrendered to military authorities at Fort Ord, CA, on 8 August 1975. 7. His records contain DA Form 3822-R (Report of Mental Status Evaluation), dated 15 August 1975, which shows he suffered from no significant mental illness, and that he was mentally responsible, able to distinguish right from wrong, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 8. On 20 October 1975, the applicant acknowledged that he was advised that he was being considered for elimination for an AWOL of one year or more under the provisions of chapter 15, Army Regulation 635-200 (Enlisted Personnel Separations). He was informed of his right to consult with a consulting counsel; to present his case before a board of officers; to submit statements on his own behalf; to be represented by counsel; and to waive his rights in writing. 9. Having been advised by consulting counsel of the basis for the contemplated action to separate the applicant for an AWOL of one year or more under the provisions of chapter 15, Army Regulation 635-200, the applicant waived legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, the rights available to him, and the effect of any action taken by him in waiving his rights. He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf. 10. The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He further understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 11. On 5 November 1975, the applicant's commander initiated action to discharge him from the service in accordance with chapter 15, Army Regulation 635-200, based upon his unauthorized absence from on or about 1 October 1968 to on or about 8 August 1975. Based on the seriousness of the applicant's offense and his negative attitude toward the Army, retention was deemed neither practical nor desirable. His intermediate commanders also recommended approval of the discharge action. 12. On 13 November 1975, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, by reason of an AWOL of one year or more and directed he be reduced to the lowest enlisted grade and receive an Undesirable Discharge Certificate. 13. On 26 November 1975, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, chapter 15, by reason of an AWOL of one year or more with an under other than honorable conditions character of service. He completed 9 months and 5 days of net active service during this period with 2,584 days of time lost. 14. 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 15 at the time established policy and prescribed procedures for separating members for misconduct by reason of absence without leave or desertion. It stated an individual could be considered for discharge under this section when an administrative review determined there was substantial evidence to support a determination of desertion or absence without leave, the authorized absence was continuous for 1 year or longer, retention was undesirable, or a trial by court-martial was deemed inadvisable. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7b states 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 contends that the Board should upgrade the characterization of his under other than honorable conditions discharge to a general discharge due to immaturity. His records show that he was well over 19 years of age at the time of his AWOL. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed military service. 2. The evidence of record shows he was repeatedly AWOL in addition to being AWOL for over one year or more, all serious offenses. As a result, his chain of command initiated separation action against him. His separation processing met all the requirements of law and regulation and fully protected his rights throughout the process. He was appropriately discharged under the provisions of Army Regulation 635-200, chapter 15 due to being AWOL for one year or more. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005074 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005074 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2