IN THE CASE OF BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150016670 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: 9 March 2017 DOCKET NUMBER: AR20150016670 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: 9 March 2017 DOCKET NUMBER: AR20150016670 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 service characterization from under other than honorable conditions to under honorable conditions (general). 2. The applicant states: * he has been out for 26 years and has been able to stay out of trouble * he has been a correctional officer and is now a railroad conductor * he is looking to apply for some benefits as he is now 45 years of age and would like to prepare for retirement 3. The applicant provides no additional evidence in support of his request. 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. After a period of service in the Army National Guard (ARNG), the applicant enlisted in the Regular Army on 10 March 1988 in the rank/grade of private (PV2)/E-2. Following the completion of his initial entry training, he was awarded military occupational specialty 16S (Man-Portable Air Defense Systems Crewmember). The highest rank/grade he attained while serving on active duty was PV2/E-2. 3. The applicant accepted non-judicial punishment (NJP) on 16 February 1989, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order from a superior noncommissioned officer on numerous occasions, to wit: 1, 2, 4, 5, 6, and 7 February 1989. 4. A DA Form 4126-R (Bar to Reenlistment Certificate), dated 6 March 1989, shows a bar to reenlistment was initiated against the applicant for the following reasons: a. He received NJP on 16 February 1989 for failure to obey a lawful orde, and received 7 days or restriction and 7 days of extra duty. b. He received a dishonored check notification from the Fort Campbell, KY, Post Exchange for writing three checks with insufficient funds. c. He received six counselling statements, from 11 August 1988 through 8 February 1989, for numerous failures to obey a lawful order, multiple failures to be at appointed place of duty, and for writing three bad checks. d. The approval authority approved his bar to reenlistment on the same day and the applicant did not desire to submit a statement on his own behalf and elected not to appeal the bar to reenlistment action on 9 March 1989. 5. A DD Form 616 (Report of Return of Absentee), dated 9 May 1989, reveals the applicant was reported as absent without leave (AWOL) on or about 13 March 1989. He was apprehended by civilian authorities on or about 8 May 1989 and was returned to Fort Hood, TX. 6. A DD Form 458 (Charge Sheet), dated 15 May 1989, shows court-martial charges were preferred against the applicant for being AWOL from on or about 13 March 1989 to on or about 8 May 1989 (a period of 57 days). 7. The applicant consulted with legal counsel and 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 under other than honorable conditions 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; however, he elected not to submit any statements. e. He was advised he could request a physical prior to his separation; however, he elected not to have a separation physical. 8. The applicant's immediate and intermediate commanders recommended approval of his request on or about 30 May 1989, with an under other than honorable conditions discharge, and forwarded his request to the approval authority. 9. The approval authority approved the applicant's request for discharge on 1 June 1989, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and his discharge with an under other than honorable conditions character of service. 10. The applicant was discharged on 6 June 1989. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows: * he was credited with the completion of 1 year and 28 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 under other than honorable conditions * he had lost time form 13 March 1989 through 10 May 1989 11. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 7 June 1993. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 10 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. DISCUSSION: 1. The applicant's record shows he was AWOL for a prolonged period of time and was apprehended by civilian authorities. 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. 2. 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. There is no indication of procedural errors that would have jeopardized his rights. The characterization of service he received was commensurate with the reason for his discharge. 3. His post-service conduct and achievements are noted. Post-service conduct and achievements alone are not normally a basis for upgrading 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) AR20150016670 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016670 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2