IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150014729 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: 18 August 2016 DOCKET NUMBER: AR20150014729 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: 18 August 2016 DOCKET NUMBER: AR20150014729 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 characterization of service from under other than honorable conditions to under honorable conditions (general). 2. The applicant states: a. In December 1983, he returned to the United States from Germany on emergency leave. His mother was gravely ill; however, he stayed after the authorized leave period ended when it was apparent she was not going to recover. He was devastated by his mother's death and he remained to attend the funeral and assist in taking care of her affairs. Unsure of what to do, he did not contact the Army until 1985. He turned himself in and he was subsequently discharged at Fort Ord, CA. b. Prior to this incident, his service was honorable and he had achieved the grade of E-4. He was young and did not fully understand the character of his discharge. He believed he received a general discharge and he provides a 2007 letter from the Department of Veterans Affairs (VA) indicating he was eligible for health care benefits. In April 2015, he received a letter from the VA informing him that he did not qualify for benefits. 3. The applicant provides: * two letters from the VA * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Identification Card * Certificate of Death 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 19 January 1982, at 18 years of age. 3. His record contains a DD Form 458 (Charge Sheet), dated 24 May 1985, which shows court-martial charges were preferred against him for being absent without leave from on or about 17 January 1984 to on or about 10 May 1985. 4. The applicant met with counsel and he voluntarily requested discharge for the good of the service on 24 May 1985, 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. He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the Uniform Code of Military Justice (UCMJ), which authorized the imposition of a bad conduct or dishonorable discharge. He stated he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. a. He acknowledged that prior to completing his request for discharge; he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses, which he was charged, any relevant lesser-included offenses. Counsel also advised him of the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if found guilty. b. He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions. He also acknowledged he had been advised and understood the possible effects of a punitive discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also acknowledged understanding that he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority?s consent or, without the separation authority's consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. Statements in his own behalf were not submitted with his request. 5. On 3 September 1985, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 16 September 1985, he was discharged accordingly. 6. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 2 years, 4 months and 4 days of creditable active service with lost time for the period 17 January 1984 through 9 May 1985. 7. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 8. The applicant provides a letter from the VA, dated 29 June 2015, which informed him that he was released from active duty service under other than honorable conditions. Therefore, he has been placed in a pending status awaiting adjudication on the character of his discharge. The letter further informed him that he may be able to receive health benefits under a humanitarian rate. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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: 1. The applicant's record shows he was charged with the commission of an offense 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. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 2. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors, which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. 3. Evidence shows the applicant was over 20 years of age at the time of his offense. There is no evidence, which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service does not meet the criteria for a general characterization 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) AR20150014729 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014729 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2