IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150004922 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 conditions discharge to a general discharge. He also request a personal hearing. 2. The applicant states: * he requested help for his mental health and he was denied * he removed himself from the area to protect others because he knew he was a danger to others * he was never offered any type of representation when completing his discharge paperwork and he was not aware of the consequences of his actions * he tried to serve our country honorably and he was looking out for everyone where he was stationed; he is now in need of benefits * he had every intention to complete his enlistment commitment; he was sent to Korea with the 2nd Infantry Division * in 1988, at Fort Riley, KS, he was dealing with multiple issues and emotions and instead of referring him to mental health, his chain of command sent him to drug and alcohol treatment * the chain of command did not want the command to look bad or have a black eye; they denied him the help he needed * he had thoughts of harming others, especially at the firing range, and he chose to separate himself in order not to harm anyone * he was young and did not know who to turn to; his chain of command failed him; he continues to have problems even today 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's records show he was born on 27 July 1967 and enlisted in the Iowa Army National Guard (IAARNG) at 18 years of age on 12 August 1985. 3. He entered active duty for training (ADT) on 23 July 1986 and he completed required training for award of military occupational specialty 11B (Infantryman). He was honorably released from ADT on 24 October 1986. 4. He was honorably discharged from the IAARNG on 18 June 1987 to enlist in the active component. He was issued a National Guard Bureau Form 22 (Report of Separation and Record of Service) that captured his ARNG service. 5. He enlisted in the Regular Army at age 20 on 15 October 1987. He served in Korea from 26 October 1987 to 26 October 1988. Following his Korea tour, he completed the Airborne Course enroute to Fort Riley, KS. He was assigned to 5th Battalion, 16th Infantry, Fort Riley on 28 December 1988. 6. On 17 February 1989, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 20 February 1989. 7. On 20 February 1989, he again departed his unit in an AWOL status, and on 2 April 1989, he was dropped from Army rolls as a deserter. He was apprehended by civil authorities in Independence, IA and returned to military control on or about 30 April 1989. 8. On 9 May 1989 court-martial charges were preferred against the applicant for three specifications of being AWOL from 17 to 20 February 1989, 20 February to 3 March 1989, and from 3 March to 30 April 1989. 9. On 9 May 1989 the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested a 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. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * that under no circumstances did he desire further rehabilitation or to perform further military service * he elected not to submit a statement on his own behalf 10. On 16 May 1989 the applicant's immediate and intermediate commanders recommended approval of the applicant’s discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 11. On 30 May 1989, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade. On 15 August 1989, the applicant was discharged accordingly. 12. His DD Form 214 shows he completed 1 year, 7 months, and 18 days of active service and he had lost time from 17 February to 29 April 1989. 13. On 20 January 1998 the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. It 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. b. 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. 15. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army 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. 2. Contrary to his contention he was never offered representation when completing his discharge paperwork and he was not aware of the consequences of his actions, the evidence of record clearly shows he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment, the possible effects of a request for discharge, and of the procedures and rights that were available to him. 3. Contrary to his contention that he was young, the applicant was 20 years of age at the time of his enlistment in the Regular Army. There is no evidence in his records that shows his AWOL was a result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service. 4. There is no evidence in his records and he provides none to support this contention that he requested mental health help but was denied. In fact, he declined to make a statement on his own behalf when he requested his voluntary discharge. 5. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also rendered his service unsatisfactory. There is insufficient evidence to support upgrading his discharge. 6. His request for a personal appearance hearing was carefully considered. However, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by him is sufficient to render a fair and equitable decision at this time. As a result, a personal hearing is not necessary to serve the interest of equity and justice. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150004922 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004922 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1