BOARD DATE: 24 September 2015 DOCKET NUMBER: AR20150002077 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 to an honorable discharge and that his rank be shown as private first class (PFC)/E-3. 2. The applicant states: * his pay grade is incorrect as it shows he was reduced to the rank of private (PVT)/E-1, but he was a PFC/E-3 * he was told by the Judge Advocate General (JAG) officer that if he stayed out of legal trouble for at least 1 year his discharge would be upgraded * he left for hardship reasons as his mother was diagnosed with cancer * he has returned to college and needs educational assistance * he needs medical/dental attention for himself and his 9-year old son 3. The applicant provides no additional evidence in support of his request. 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 2 December 1985. After completing his initial entry training, he was awarded military occupational specialty 11B (Infantryman). The highest rank/grade he attained while serving on active duty was private two (PV2)/E-2. 3. On or about 30 August 1986, he was reported in an absent without leave (AWOL) status from his unit, Company D, 3rd Battalion, 19th Infantry Regiment, Fort Stewart, Georgia. He returned to his unit on 1 October 1986. 4. On 4 December 1986, charges were preferred against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, two specifications: * specification one - for being absent from his place of duty, to wit, charge of quarters runner, from on or about 23 August to 24 August 1986 * specification two - for being AWOL from his unit from on or about 30 August to 1 October 1986 5. On 17 December 1986, a summary court-martial found the applicant not guilty of specification one and guilty of specification two. He was sentenced to reduction to the pay grade of E-1, a forfeiture of $426 pay for 1 month, and to be confined for 7 days. On 29 December 1986, the convening authority approved the sentence to be executed but suspended the confinement for 6 months, unless the suspension was sooner vacated. 6. Two DA Forms 4187 (Personnel Action) show: a. On 26 August 1987, the applicant was advanced to PFC/E-3 with an effective date and date of rank of 1 September 1987. b. On 2 September 1987, the applicant's name was deleted from the list for advancement to the rank of PFC/E-3 because his name was erroneously listed since he went AWOL on 28 August 1987. 7. On 28 August 1987, he was reported as AWOL from his unit Company B, 3rd Battalion, 19th Infantry Regiment, Fort Stewart, Georgia. On or about 26 September 1987, he was dropped from the rolls of the Army. On or about 15 January 1991, he was apprehended by the Los Angeles Police Department and returned to military control at Fort Ord, California. 8. On 25 January 1991, court-martial charges were preferred against him for violating Article 86 of the UCMJ; specifically, for being AWOL from on or about 28 August 1987 to 15 January 1991. 9. On 28 January 1991, after consulting 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. In his request for discharge, he acknowledged: a. He understood that by requesting discharge, he was admitting guilt to the charge against him, or a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. b. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. c. He understood that if his 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He may expect to encounter substantial prejudice in civilian life because of an other than honorable discharge. He further understood that there is no automatic upgrading nor review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the ABCMR if he wishes review of his discharge. (emphasis added). e. He was advised he could submit any statements he desired in his own behalf; however, he elected not to do so. 10. On 18 March 1991, the separation authority approved his request for discharge and directed his reduction to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge. On 27 March 1991, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he had lost time from 28 August 1987 to 15 January 1991. 11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a discharge upgrade from under other than honorable conditions to an honorable discharge was carefully considered. 2. His record shows he was charged with the commission of an offense 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. 3. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. His discharge accurately reflects his overall record of service. 4. He contends he was AWOL as a result of a hardship in that his mother was diagnosed with cancer. However, there is no evidence nor has he provided any that this was a mitigating factor in his misconduct. 5. He further contends that he signed his discharge paperwork as a PFC; however, all the documents that relate to his discharge show his rank as PV2 or PVT. A DA Form 4187, dated 26 August 1987, shows he was advanced to PFC but it was followed up by a DA Form 4187, dated 2 September 1987, that rescinded that promotion as a result of his AWOL status. He had 509 days of lost time. Additionally, on 18 March 1991 the separation authority approved his request for discharge and directed his reduction to the lowest enlisted pay grade (PVT/E-1). 6. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 7. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits or based on the passage of time. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veteran benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA. 8. Based on his extended period of lost time, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. Therefore, there is no basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X______ __X______ __X__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20100014558 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002077 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1