BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000862 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 BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000862 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. BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000862 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 discharge under other than honorable conditions (UOTHC). 2. The applicant states: * he was too young to fully understand the implications and was not in his right mind * his wife had just cheated on him and was pregnant with another man's child * he was upset and spoke to a chaplain because he didn't feel safe around explosives * the chaplain suggested that he be absent without leave (AWOL) * he needed to stay back and take care of his family issues * he was discharged from the Army as a result of following his chaplain's advice * he has completed college with a Bachelor's of Science degree in Computer Science * he is currently working as an engineer for Microsoft * this discharge is causing employment issues for him and he is unable to obtain any government loans * he has been a good citizen * he would like to state for the record that he was gone for less than 30 days 3. The applicant provides no additional evidence. 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 U.S. Army Reserve on 2 October 1991. He attended and completed initial active duty for training on 15 July 1992. On 24 February 1993 at the age of 19, he further enlisted in the Regular Army. He progressed to the rank of private first class (PFC/E-3). 3. He was reported as AWOL from 18 July 1994 to on or about 22 August 1994, a period of 36 days. 4. On 22 August 1994, a request for duty status change shows he was returned to military control and was assigned to Battery B, Personnel and Support Battalion, Fort Sill, OK. 5. On 24 August 1994, court-marital charges were preferred against him for one specification of being AWOL from on or about 18 July 1994 to 22 August 1994. 6. On 25 August 1994, the applicant consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge UOTHC, and the procedures and rights available to him. 7. Following consultation with legal counsel, he voluntary requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * he was making the request of his own free will and had not been subjected to coercion whatsoever by any person * he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood he could be discharged under conditions other than honorable * he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a discharge UOTHC 8. On 29 September 1994, the separation authority approved his request for a discharge and directed the issuance of a discharge UOTHC and reduction to the lowest enlisted grade. 9. On 18 October 1994, he was discharged under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 2 months, and 29 days of creditable active service with lost time from 18 July 1994 to 22 August 1994. His service was characterized as UOTHC. 10. His service records do not indicate he applied to the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 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 UOTHC is normally considered appropriate. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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 contends his youth played a role in his misconduct; however, he was nearly 21 years of age at the time of his misconduct. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 2. The available records do not contain any evidence showing the applicant was under any unusual level of stress or that such stress was the proximate cause of his misconduct. Additionally, there is no evidence that support his contention that he was misled into being AWOL by his chaplain. 3. The applicant's records show he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. 4. The applicant's period of AWOL served to diminish the overall quality of his service below that meriting an honorable or general discharge. Although an honorable or general discharge was authorized, a discharge UOTHC is normally considered appropriate in chapter 10 separations involving AWOL periods of over 30 days. 5. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of service he received was commensurate with the reason for his discharge and overall record of service 6. The applicant's post-service educational accomplishments were noted. Post-service conduct and accomplishments are not normally a basis for upgrading a discharge. 7. Granting of veterans' benefits is not within the purview of the ABCMR. Any questions regarding eligibility for veterans's benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000862 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000862 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2