IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150009227 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: 12 July 2016 DOCKET NUMBER: AR20150009227 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: 12 July 2016 DOCKET NUMBER: AR20150009227 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 (UOTHC) discharge. 2. The applicant states he was told by his commanding officer that, in light of his service history, his UOTHC discharge would be changed after 6 months. Therefore, he signed his discharge paperwork based on their honesty. 3. The applicant provides a letter from the White Plains Hospital Center, White Plains, New York, dated 9 January 2012. 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 May 1985. After completing his initial entry training, he was awarded military occupational specialty 44B (Metal Worker). The highest rank/grade he attained while serving on active duty was private (PV2)/E-2. 3. Following the completion of his initial entry training, the applicant was assigned on 4 December 1985 to Company D, 84th Engineer Battalion, at Schofield Barracks, Hawaii. 4. The applicant was reported by his unit as absent without leave (AWOL) on 10 December 1985. He was dropped from the rolls of the Army on 10 January 1986. He was apprehended by military authorities at White Plains, New York, on or about 20 May 1991, and assigned to the Personnel Control Facility, Fort Dix, New Jersey. 5. He was provided an opportunity for a medical examination for separation, and on 21 May 1991, he elected not to undergo such an examination. 6. Court-martial charges were preferred against the applicant on 22 May 1991, for being AWOL from on or about 10 December 1985 through on or about 20 May 1991, a period of 5 years, 5 months, and 10 days (1,987 days). 7. Following consultation with counsel on or about 22 May 1991, the applicant voluntarily requested 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: a. He understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. b. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him. c. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, 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. d. He was advised he could submit any statements he desired in his own behalf and elected to do so. In his statement to the separation authority, he: * requested an under honorable conditions (general) discharge * stated he was on an unaccompanied tour to Hawaii and left his wife back in Newark * started getting calls from his wife as she was not getting along with his family and tried to resolve the problem by phone calls * stated he tried to seek assistance from his chain of command but felt no one would assist him and got the run-around * stated the situation at home got worse and felt he had to go on AWOL to fix it * stated he had no choice if he wanted to save his marriage; but now he knows going AWOL was not the proper choice 8. The appropriate approval authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. 9. The applicant was discharged on 19 September 1991. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows: * he was credited with the completion of 9 months and 20 days of net active service * he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial * his service was characterized as UOTHC * he had lost time from 10 December 1985 through 19 May 1991 10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. The applicant provides a letter, dated 9 January 2012, from the Family Health Center of the White Plains Hospital Center, which states he is being treated for multiple issues including diabetes, hypertension, and elevated liver enzymes. It further states he was diagnosed with type 2 diabetes in May 2010. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. c. 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 UOTHC is normally considered appropriate. DISCUSSION: 1. The applicant's request for an upgrade of his UOTHC discharge was carefully considered. His record shows he was AWOL for a prolonged period of time (5 years, 5 months, and 10 days) before he was apprehended by military authorities. 2. Subsequent to his return to military control, court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial and a potential punitive discharge. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. His service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel and his discharge accurately reflects his overall record of service. 4. He contended he was AWOL as a result of a family issue involving his wife. However, there is no evidence nor has he provided evidence that shows he sought help from an Army agency or that his chain of command was apathetic to his situation. In addition, he admitted in his statement to the separation authority that going AWOL was the wrong decision. 5. The applicant's evidence in support of his application is noted; however, it relates to medical conditions that were diagnosed some 19 years after his discharge, which do not appear to support a nexus between his health and his misconduct. 6. The U. S. Army does not have, nor has it ever had, a policy that allows for the automatic upgrade of discharges based on the passage of time. Each case is decided on its own merits when an applicant requests a change. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009227 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009227 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2