BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160017580 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: 21 September 2017 DOCKET NUMBER: AR20160017580 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: 21 September 2017 DOCKET NUMBER: AR20160017580 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 correction of his record to show he received an honorable discharge from active duty. 2. The applicant states a Veterans Affairs/Department of Defense Identity Repository (VADIR) Information Report is wrong because his discharge was honorable and his time in service shown on the report is wrong. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) for the period ending 8 April 1976 * DD Form 214 for the period ending 12 November 1982 * NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for the period ending 11 August 1983 * National Personnel Records Center Letter, dated 20 August 2016 * VADIR Information Report, dated 24 November 2015 * Army Review Boards Agency letter, dated 9 November 2016 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 District of Columbia Army National Guard (DCARNG). He entered active duty for training on 8 February 1976 as a member of the ARNG to attend initial entry training. He was honorably released from active duty training on 2 April 1976 and returned to the control of the DCARNG. Upon his release from active duty, he was issued a DD Form 214 showing he had 10 days of lost time during the period 14 March to 23 March 1976. 3. The applicant's DA Form 2-1 (Personnel Qualification Personnel) shows he was discharged or released from the DCARNG on 9 April 1976 in a trainee status. 4. On 25 January 1982, the applicant reenlisted in the DCARNG. He was ordered to active duty for training on 12 April 1982. 5. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 May 1982 for being absent without leave (AWOL) from 17 May until 20 May 1982. He went AWOL again on 30 July 1982 and he remained absent in desertion until he returned to military control on 28 September 1982. 6. On 31 September 1982, court-martial charges were preferred against the applicant for one specification of AWOL from on or about 30 July to on or about 28 September 1982. 7. On 1 October 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge the applicant indicated: a. he was making this request of his own free will and he had not been subjected to any coercion by any person, and he had been advised of the implications that are attached to his request; b. he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge; c. he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws; d. under no circumstances did he desire further rehabilitation for he had no desire to perform further military service; e. he elected not to submit a statement on his own behalf; and f. he understood he may be discharged under other than honorable conditions and he signed his written request for discharge. 8. The appropriate authority approved the applicant's request for discharge on 8 October 1982 and directed the issuance of a discharge under other than honorable conditions. The applicant was accordingly discharged on 12 November 1982. 9. His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service – in lieu of trial by court-martial with an under other than honorable conditions characterization of service. This form confirms he completed a total of 5 months and 3 days of active military service. He had lost time from 30 July to 27 September 1982. 10. On 11 August 1983, the DCARNG discharged the applicant, in absentia, under the provisions of National Guard Regulation 600-200 (Enlisted Administrative Separations), paragraph 7-100, under the Expeditious Discharge Program. His NGB Form 22 shows his character of service as "under honorable conditions." 11. The applicant provides a copy of his VADIR Information Report, dated 24 November 2015, which lists his active duty service period. It shows the following information: * Service – Army * Component – Active Duty * Entered on Duty – 12 April 1982 * Release from Active Duty – 13 November 1982 * Character of Service – Under Other Than Honorable Conditions REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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 states 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 states 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. DISCUSSION: 1. The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily, willingly, and in writing, requested discharge from the Army 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 service he received was commensurate with the reason for his discharge. 3. Based on his record of indiscipline, the separation authority determined his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is no evidence of error in the separation authority's determination that the applicant's service did not rise to the level required for a general or an honorable discharge. 4. A review of the applicant's official military record failed to reveal that the active duty information shown on his VADIR Information Report is "wrong." He entered active duty on 12 April 1982 and he was discharged from active duty on 12 November 1982 as per his DD Form 214. Although he was later discharged from the DCARNG under honorable conditions, his character of service was under other than honorable conditions when he was discharged from active duty. While the VADIR Information Report shows the applicant's release from active duty date as 13 November 1982, a one day difference than shown on his DD Form 214, the Board does not have jurisdiction to correct a VA record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017580 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017580 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2