IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150015675 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: 20 December 2016 DOCKET NUMBER: AR20150015675 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: 20 December 2016 DOCKET NUMBER: AR20150015675 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 an upgrade would happen after 6 months. He needs health benefits. 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 enlisted in the Regular Army on 10 November 1982 and he held military occupational specialty 63S (Heavy Wheel Vehicle Mechanic). He served in Germany from 21 July 1983 to on or about 1 October 1984. 3. On 8 September 1984, he departed his unit on ordinary leave through 30 September 1984. He did not return. Accordingly, on 1 October 1984 his unit reported him in an absent without leave (AWOL) status and on 31 October 1984 his name was dropped from Army rolls as a deserter. He ultimately surrendered to military authorities at Fort Knox, KY, on 9 May 1985. 4. On 14 May 1985, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 1 October 1984 to on or about 9 May 1985. 5. On 15 May 1985, 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 discharge under the provisions of Army Regulation (AR) 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 coercion 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 acknowledged 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected not to submit a statement in his own behalf 6. In connection with this request, he signed a medical statement indicating he did not desire to undergo a medical examination. 7. On 15 May 1985, his immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. The immediate commander opined that the applicant's conduct rendered him triable by court-martial under circumstances that could lead to a bad conduct or a dishonorable discharge. His discharge was in the best interests of the Army. 8. Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of AR 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. 9. The applicant was discharged on 1 July 1985. The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions. This form further confirms he completed 2 years and 14 days of creditable active service and he had lost time from 1 October 1984 to 8 May 1985. His DD Form 214 also shows he was awarded or authorized the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar. 10. On 1 December 1995, the Army Discharge Review Board advised the applicant that his appeal had been denied. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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. DISCUSSION: 1. The applicant's record shows he was charged with the commission of an offense (being AWOL) punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 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. 2. He was advised of his rights and acknowledged his decision could impact his potential VA benefits. He chose the discharge in lieu of a court-martial that could have adjudged a bad conduct discharge. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 3. The Army never had nor does it now have a policy wherein a characterization of service is changed due to the passage of time. Each case is considered on its own merits. 4. Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also renders his service unsatisfactory. His service did not rise to the level required for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015675 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015675 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2