BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160002498 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: AR20160002498 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: AR20160002498 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 to general under honorable conditions. 2. The applicant states: a. He was having family problems and his unit was on "lock down." His team leader, squad leader, and platoon sergeant told him to go home, take care of the problem, and come back after 30 days to get his discharge. b. He had served honorably until that time. He was a good Soldier and he wishes he could change the mistake he made 15 years ago. His time in the Army was the best time of his life. He tried to go back into the Army, but he could not. c. During his service, he was awarded the Army Commendation Medal, Army Achievement Medal, Expert Infantryman Badge, and Overseas Service Ribbon. He was also an Expert Infantryman Badge grader at Fort Lewis, WA, and he served as a radio/telephone operator. 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 Regular Army on 16 June 1998 and he held military occupational specialty 11B (Infantryman). He served in Korea from October 1998 to around October 1999. 3. Following his tour in Korea, he was assigned to Company C, 2nd Battalion, 20th Infantry, Fort Lewis, WA. On 30 May 2000, the applicant departed his unit in an absent without leave (AWOL) status and he was dropped from Army rolls as a deserter on or about 29 June 2000. 4. On 11 September 2000, he was apprehended by civil authorities in Texas and placed in the county jail. He was ultimately returned to military control on 20 September 2000. 5. On 21 September 2000, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 30 May to 20 September 2000. 6. On 22 September 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge if the request were approved, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 7. In his request for discharge, the applicant acknowledged: a. he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person and that he had been advised of the implications that were attached; b. he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge; and c. 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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He elected not to submit a statement on his own behalf and he indicated that he did not desire a physical evaluation prior to separation. 8. On 5 February 2001, the applicant’s immediate commander recommended approval of the applicant’s request for discharge and indicated the applicant had become disillusioned with the military. His retention was not in the best interest of the Army. The commander recommended the issuance of a discharge under other than honorable conditions. 9. On 11 February 2001, a military attorney reviewed the applicant's request for voluntary discharge in lieu of trial by court-martial and found it legally sufficient. 10. The separation authority approved the applicant's request for discharge and directed his reduction to the lowest enlisted grade, if applicable, and receipt of a discharge under other than honorable conditions. The applicant was discharged accordingly on 14 March 2001. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200. He completed 2 years, 5 months, and 5 days of creditable active military service and he had lost time from 30 May to 20 September 2000. He was placed in an excess leave status from 27 September 2000 to 14 March 2001. 12. His DD Form 214 also shows he was awarded or authorized the Army Service Ribbon. 13. On 14 January 2008, the Army Discharge Review Board reviewed the characterization of his service and found it proper and equitable. As such, the board denied his petition for an upgrade of his discharge. REFERENCE: 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 under other than honorable conditions is normally considered appropriate. 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’s records show he was charged with the commission of an offense punishable under the UCMJ 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. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 3. Based on this record of indiscipline, the separation authority determined that his service did not meet the standards of acceptable conduct and performance of duty for Army personnel and his misconduct rendered his service unsatisfactory. The separation authority also determined his service did not rise to the level required for a 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) AR20160002498 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002498 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2