BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160002067 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: 25 May 2017 DOCKET NUMBER: AR20160002067 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: 25 May 2017 DOCKET NUMBER: AR20160002067 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, in effect, an upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect, that: * he apologizes to everyone in the Army for his actions * his personal problems clouded his thinking and performance as a Soldier * the military was the greatest thing that ever happened to him * while stationed in Germany he felt a sense of support and when he was stationed at Fort Stewart he did not feel that same support; things fell apart after that * he took leave and then decided to go absent without leave (AWOL); he reflected on his actions and knew he made a big mistake * he was ashamed, would have done things differently, and would have utilized his chain of command for help and assistance 3. The applicant provides five letters of support from family and friends. 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 24 March 1987. 3. A DA Form 4187 (Personnel Action), dated 27 May 1992, shows the applicant was reduced from the rank/grade of specialist (SPC)/E-4 to the rank/grade of private first class (PFC)/E-3 after receiving nonjudicial punishment (Article 15) on 20 May 1992. His record does not include the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) documenting the offense for which he was punished. 4. The applicant's record contains DA Forms 4187 that show: * on 1 September 1992, he was reported AWOL effective 27 August 1992 * on 6 October 1992, he was dropped from rolls (DFR) effective 27 September 1992 * on 22 October 1992, he was returned to military control after he surrendered to military authorities at Fort McPherson, GA on 20 October 1992 5. Orders 189-3, issued by Headquarters, U.S. Army Personnel Control Facility (PCF), Fort Knox, KY on 23 October 1992, show the applicant was assigned to the Special Processing Company, U.S. Army PCF, effective 20 October 1992 but did not join the unit until 21 October 1992. 6. A U.S. Army Armor Center Form 2722 (Medical Examination for Separation – Statement of Option) shows the applicant was offered a separation medical examination on 21 October 1992, which he refused. The applicant initialed the statement indicating he did not desire a separation medical examination and signed and dated the form on 21 October 1992. 7. A DD Form 458 (Charge Sheet), dated 23 October 1992, shows court-martial charges were preferred against the applicant for being AWOL from his organization: Company B, 224th Support Battalion, Fort Stewart, GA, from on or about 27 August 1992 through on or about 20 October 1992 (a period of 54 days). 8. After consulting with legal counsel on 23 October 1992, the applicant voluntarily requested discharge for the good of the service, 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. 9. In doing so, the applicant acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements 10. The applicant's immediate and intermediate commanders recommended approval of his request on or about 30 October 1992, with an under other than honorable conditions discharge, and forwarded his request to the approval authority. 11. The approval authority approved the applicant's request for discharge on 5 November 1992, under the provisions of Army Regulation 635-200, chapter 10, 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. 12. The applicant was discharged on 30 November 1992. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms: * he was credited with completing 5 years, 6 months, and 12 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 from 27 August 1992 through 19 October 1992 * he had excess leave time from 24 October 1992 through 30 November 1992 13. 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 20 October 1998. 14. The applicant provides five letters of support from family and friends. These statements state he is a kind person, good father, and he regrets leaving the Army. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service. DISCUSSION: 1. The applicant's was given an Article 15 for an unknown reason, which resulted in his reduction in rank from SPC to PFC. Later, he went AWOL and remained AWOL for 54 days before he surrendered to military authorities. 2. Subsequent to the applicant's 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 in order to avoid trial by court-martial and the potential punitive discharge. 3. The applicant's 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. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. There is no indication of procedural errors that would have jeopardized his rights. There is no indication his request was made under coercion or duress. The characterization of service he received is commensurate with the reason for his discharge. 4. Based on the applicant's record of indiscipline, including a violation of the UCMJ that resulted in court-martial charges, and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an honorable or general 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) AR20160002067 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002067 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2