BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160001014 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: 24 August 2017 DOCKET NUMBER: AR20160001014 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: 24 August 2017 DOCKET NUMBER: AR20160001014 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 to an honorable or a general discharge. 2. The applicant states he went absent without leave (AWOL) following the discrimination he received from his platoon and chain of command. He was discriminated against because he displayed more feminine characteristics than other males in his command. He received threats of violence and constant harassment; therefore, he feared for his life. He felt he was safer at home where he could deal with his situation. He was only a few months away from completing his service obligation. Once he was able to calm his nerves he contacted his first sergeant and stated he was ready to the fix the situation. 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 the cases 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. 2. The applicant enlisted in the Regular Army on 24 March 1994, for 3 years. He held military occupational specialty 77F (Petroleum Supply Specialist). He was promoted to pay grade E-4 on 24 May 1996. 3. On 25 February 1997, a DD Form 458 (Charge Sheet) was completed by the Commander, Personnel Control Facility, Fort Sill, OK, which shows the applicant was charged with one specification of being AWOL from 8 October 1996 to 22 February 1997. 4. On 27 February 1997, after consulting with counsel, the applicant 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. He acknowledged his period of AWOL and indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person. He also acknowledged he understood the imposition of an under other than honorable conditions discharge and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement on his own behalf. 5. On 11 April 1997, the applicant's unit commander recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge. The commander stated the applicant was charged with being AWOL for 137 days and he was apprehended by civilian authorities. The applicant had become disillusioned with the military and retaining him was not in the best interest of the Army. 6. On 15 April 1997, the Chief, Criminal Law Division, found no legal objection to the unit commander's recommendations. 7. On 15 April 1997, the separation authority approved the applicant's request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1. 8. He was discharged accordingly on 2 May 1997. He was credited with completing 2 years, 8 months, and 22 days of active service and 137 days of time lost. His service was characterized as under other than honorable conditions. 9. There is no indication he petitioned the Army Discharge Review Board within its 15 years statute of limitations for an upgrade of his discharge. REFERENCE: AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – A member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must include the individual’s admission of guilt. The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 2. After consulting with counsel, he acknowledged he had been advised of the implications of such a discharge and that he was guilty of the charges against him. Further, he acknowledged he understood he could be issued an Under Other Than Honorable Conditions Discharge Certificate. He waived his rights and elected not to submit a statement in his own behalf. He was discharged accordingly. 3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would have jeopardized his rights. Without evidence to the contrary, it appears the separation authority determined his service did not rise to the level required for an honorable or a general discharge. 4. Other than the applicant's own statement, no evidence has been presented showing the applicant was a victim of discrimination and/or that he was not properly and equitably treated during his period 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) AR20160001014 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001014 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2