BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160001637 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: 14 September 2017 DOCKET NUMBER: AR20160001637 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: 14 September 2017 DOCKET NUMBER: AR20160001637 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 (UOTHC) discharge to an honorable discharge. 2. The applicant states he has two enlistments. His first enlistment ended in September 1989 and was characterized as honorable. His second enlistment ended as UOTHC. 3. The applicant provides a Department of Veterans Affairs mailing roster for correspondence and 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 6 May 1986 and was discharged on 20 September 1988 for immediate reenlistment. 3. His service record contains a series of DA Forms 4187 (Personnel Action), which record the following changes in his duty status: * 1 May 1989 – present of duty (PDY) to absent without leave (AWOL) * 2 May 1989 – AWOL to PDY * 16 June 1989 – PDY to AWOL * 23 June 1989 – AWOL to PDY * 10 October 1989 – PDY to AWOL * 11 November 1989 – AWOL to dropped from the rolls (DFR) 4. On 20 January 1995, court-martial charges were preferred against him for being AWOL from on or about 10 October 1989 to 18 January 1995. 5. On 23 January 1995, the applicant consulted with legal counsel, who advised him of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. a. Following the consultation with legal counsel, he 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. b. The applicant acknowledged in his request for discharge, he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person and that he was guilty of the charges against him or of lesser included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He acknowledged understanding, if the discharge request was approved, he could be discharged UOTHC, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. He also acknowledged understanding he may submit any statement he desires in his own behalf, which would accompany his request for discharge. He elected not to submit statements in his own behalf. 6. The applicant's immediate and intermediate commanders recommended approval of his request for discharge with the issuance of a UOTHC discharge. 7. On 13 March 1995, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with issuance of a UOTHC discharge and reduction to private/E-1. 8. On 29 March 1995, the applicant was discharged with a UOTHC character of service. He completed 3 years, 7 months, and 16 days total active military service with lost time from 10 October 1989 to 17 January 1995. His lost time from 1 to 2 May 1989 (AWOL) and 16 to 23 June 1989 (AWOL) is not listed on his DD Form 214. 9. His service record does not indicate he applied to the Army Discharge Review Board 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. Chapter 10 of this regulation provided 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 UOTHC discharge is normally considered appropriate. a. 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. b. 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. His service record shows he was AWOL from 1 to 2 May 1989 and 16 to 23 June 1989 and court-martial charges were preferred against him for being AWOL from on or about 10 October 1989 to 18 January 1995. 2. 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 advice from legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. The characterization of his service was commensurate with the reason for his discharge. 3. An under other than honorable conditions characterization of service was normally appropriate for a Soldier discharged under chapter 10. The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001637 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001637 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2