BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20160013836 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 BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20160013836 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. BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20160013836 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 the only incident in his records is a period where he was absent without leave (AWOL) for 64 days. He was not a disobedient Soldier and unfit for duty, but rather a scared teenager afraid for his life. He was not in violation of Title 38, Code of Federal Regulations (CFR), section 3.12. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 5 February 2013 * VA Administrative Decision, dated 10 May 2013 * seven letters of support 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 6 November 1974 at age 18. 3. A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 5 September 1975, shows he was AWOL as of 30 June 1975, dropped from the rolls on 29 July 1975, and surrendered to military authorities on 25 August 1975. 4. A memorandum signed by the Commander, Personnel Control Facility, U.S. Army Signal Center and Fort Gordon, dated 16 September 1976, shows the applicant 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, on 3 September 1975. The executive officer interviewed him on 2 September 1975. He indicated he understood the meaning and effects of an undesirable discharge and requested such action. He did not submit statements in his own behalf. The commander recommended approval of the action and the issuance of an undesirable discharge. 5. His records do not contain further documents pertaining to his discharge packet. 6. On 16 October 1975, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10. His DD Form 214 shows he completed 9 months and 7 days of total active service with 64 days of lost time. 7. 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. 8. On 5 February 2013, he submitted a statement to the VA in support of a claim. He stated he wished to provide information surrounding the circumstances of his discharge. He joined the military in good faith with a strong desire to serve his country. He excelled in basic combat training and was on the road to becoming and outstanding Soldier. He was then assigned to a newly organized special unit at Fort Polk when some Soldiers who had recently returned from Vietnam approached him. These Soldiers began to harass and fight him, eventually threatening in essence to kill him in his sleep. He became afraid and decided to leave Louisiana in order to stay alive. After 2 weeks, he regretted his decision to go back home to Alabama and decided to do the right thing and turn himself in to the authorities. He was convinced by the company commander to return him and, although he was concerned with the character of his service, he was assured it would not be bad. It was only much later that he discovered he received a discharge under other than honorable conditions. 9. On 10 May 2013, the VA determined his discharge for the period of service from 6 November 1974 through 16 October 1975 was honorable for purposes of eligibility for VA benefits and was therefore not considered a bar to benefits under Title 38, CFR, section 3.12. 10. The applicant provided seven letters of support from his pastor and friends. They all attest to how hardworking, dedicated, and helpful he is as a well-respected member of his church and civic community. REFERENCES: 1. 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Title 38, CFR, section 3.12, states a discharge or release from service under one of the conditions specified in this section is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense, causing such discharge or release or unless otherwise specifically provided. Benefits are not payable where the former service member was discharged or released under one of numerous conditions, to include by reason of a discharge under other than honorable conditions issued as a result of AWOL for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. DISCUSSION: 1. The applicant's records show he was AWOL from 30 June 1975 through 25 August 1975, totaling 64 days of lost time. This is an offense punishable under the Uniform Code of Military Justice with a punitive discharge. 2. His complete discharge packet is not available for review, although there is documentation showing he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 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 his discharge was not accomplished in compliance with applicable regulations without procedural errors, which would have jeopardized his rights. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. Title 38, CFR, section 3.12, applies to a veteran's eligibility for VA benefits as determined by the VA. It has no bearing on his request to upgrade his discharge. Additionally, it appears the VA already determined his discharge was honorable for purposes of eligibility for VA benefits. 4. Although he claims he was young and afraid at the time of his discharge, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service. 5. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His discharge accurately reflects his overall record 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) AR20160013836 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013836 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2