IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150007753 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: * he was told and promised that the characterization of service would be automatically upgraded to a general discharge * he never set foot in a court room when he was discharged; he was released from a military confinement facility at Fort Gordon, GA, and he signed papers that he did not understand * he asks that all proceedings regarding his discharge be given to him for review * he was lied to by the military officials and he was told after a year his discharge would be upgraded * he was discharged for pawning Army equipment; there was a pawn shop strategically placed outside Fort Stewart * there were hundreds of Soldiers utilizing the pawn shop to get loans but he was the only one charged; he even paid for the item that was pawned; nothing was ever sold * he was told he would be discharged because of "inability to adjust to military life" but that was changed to chapter 10 * he was only 19 years of age at the time and did not understand the ramifications of serving for the U.S. Government 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 was born in December 1966. He enlisted in the Regular Army at 19 years of age on 18 June 1985. He completed training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist). 3. He was awarded or authorized the Army Service Ribbon. He attained the rank/grade of private first class/E-3 and he was assigned to the 283rd Maintenance Company, Fort Stewart, GA. 4. His records show he departed his unit in an absent without leave (AWOL) status on 9 March 1987 and he returned to military control on 17 March 1987. 5. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, his record contains the following documents: a. DA Forms 4187 (Personnel Action) that shows he was confined by military authorities on 27 March 1987 pending disposition of court-martial charges. He was released from confinement on 6 May 1987. b. Orders 88-11, issued by Headquarters, 24th Infantry Division, Fort Stewart, GA on 7 May 1987 reassigning him in the rank of private to the U.S. Army Separation Transfer Point, effective 8 May 1987, for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). c. A DD Form 214 that shows he was discharged on 8 May 1987 under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions. This form also shows he completed 1 year, 9 months, and 12 days of creditable active service and he had lost time from 9 to 16 March 1987 and from 27 March to 5 May 1987. d. Letter, dated 8 May 1987, barring him from entering the Fort Stewart Military Reservation due to having been administratively discharged with an under other than honorable conditions characterization of service. 6. 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 limitation. 7. 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 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. 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. c. 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 complete facts and circumstances that led to his voluntary discharge. However, his record contains a DD Form 214 that shows he was discharged on 8 May 1987 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial. 2. 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. The applicant has 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. The applicant was 19 years of age upon his enlistment in the Regular Army and nearly 20 years of age when he appears to have committed his offense. However, there is insufficient evidence to show the applicant's offense or offenses that led to his discharge was/were caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their term of service. 4. The Army never had and does not now have a policy providing that a characterization of service may be upgraded due to passage of time. Additionally, the reason the applicant did not see a court room was because once he submitted the voluntary request for the administrative discharge and the request was approved by the separation authority, the court-martial charges would have been dropped, negating the need to appear in court. The option to choose one over the other was always his. 5. Based on his record of indiscipline his service does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory and does not qualify him for an honorable or a general discharge. 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) AR20150007753 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007753 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1