BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150005084 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. 2. The applicant states: * upon his initial entry into the Army, he made positive progress and obtained the rank of specialist four (SP4) within a short period of time * he was a good Soldier and received multiple awards for service and achievement, as well as badges, he also was awarded the Purple Heart which is not shown in his records * while assigned to Fort Richardson, AK, and preparing to go to Fort Bragg, NC, he was in charge of the rear detachment of his unit * in this capacity, he was tasked with developing an operation order detailing what he had the Soldiers do * because he did not hold the rank for such a position, another senior noncommissioned officer (NCO) was assigned * this NCO came to the unit with an attitude and took action by sending every one forward to the front with the rest of the unit * he (the applicant) questioned this decision because he had already been sent forward and he was preparing to go to Fort Bragg * after a heated discussion, the NCO put his hands on him and he resisted; another NCO witnessed this and charges were brought against him * he was reduced in rank and was later reassigned to Fort Bragg; he was then consistently harassed and denied promotion * he did not resist this NCO nor did he hit him; however, he became disappointed with the actions toward him and decided to go absent without leave (AWOL) * he went AWOL but realized that his action was the wrong thing to do; he just wanted to be the best he could be 3. The applicant does not provide any 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's records show he enlisted in the Regular Army (RA) in the rank/graded of private first class (PFC)/E-3 on 6 August 1986 and he held military occupational specialty 11B (Infantryman). He completed the Basic Airborne Course. 3. He served in Alaska from 25 January 1987 to 24 August 1989. He was assigned to Company C, 2nd Battalion, 17th Infantry Regiment as a rifleman or an assistant machine gunner. He was advanced to SP4/E-4 on 1 October 1987. 4. He departed Alaska in August 1989 enroute to the 3rd Battalion, 504th Parachute Infantry Regiment at Fort Bragg, NC. 5. His records contain a DA Form 4187 (Personnel Action), initiated by his chain of command on 23 August 1989 that reduced him to PFC/E-3 effective 22 August 1989 as a result of nonjudicuial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). His Article 15 is not available for review with this case. 6. On 6 June 1990, he departed his unit in an AWOL status and on 6 July 1990, he was dropped from the Army rolls as a deserter. 7. On 10 July 1990, his chain of command at Fort Bragg, NC initiated court-martial charges in his absence for one specification of AWOL from 6 June 1990 to an unknown date. 8. He was apprehended by civil authorities in Southern Pines, NC on or about 17 August 1990. He was transferred to military control at Fort Bragg. 9. It appears following his apprehension and return to military control court-martial charges were preferred against him. The complete facts and circumstances surrounding the applicant's discharge processing are not available for review with this case. However, his record contains: a. Orders 189-30, issued by Headquarters, 82nd Airborne Division, Fort Bragg on 27 September 1990 reducing him from PFC/E-3 to private/E-1 effective 17 September 1990. b. Orders 192-8, issued by Headquarters, 82nd Airborne Division, Fort Bragg on 2 October 1990, reassigning him to the U.S. Army Transition Point, for the purpose of out-processing, and subsequent discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the Army in lieu of trial by court-martial, effective 9 October 1990. c. A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 9 October 1990, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge. This form also shows he completed 3 years, 11 months, and 22 days of creditable active service and he had lost time from 6 June to 16 August 1990. This form also shows he was awarded or authorized the: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar * Overseas Service Ribbon * Parachutist Badge * Army Achievement Medal * Army Commendation Medal * Purple Heart 10. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 states 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. 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 AND CONCLUSIONS: 1. The applicant's record is void of the facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged under other than honorable conditions on 9 October 1990 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial. 2. The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate the contrary. Further, it is presumed that the applicant's discharge accurately reflects his overall record of service. 3. There is no evidence in his records and he provides none to show he encountered harassment or was given a hard time by a superior NCO or that he addressed such issues with his chain of command or other supporting channels. In any case, there would have been many other legitimate avenues to address those issues had the applicant elected to use them. 4. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. 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) AR20150005084 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005084 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1