IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150003489 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, the following: * he injured his back lifting a tent and was still required to perform his duties * he went absent without leave (AWOL) because he broke his leg on an airborne jump while at Fort Bragg, North Carolina, and despite his injury, he still had to participate in a road march * no one cared; his chain of command said he was a "wimp" * he would like a copy of his medical records 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 24 June 1981. Following the completion of his initial entry training, he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman). The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3. He was assigned to Company E, 504th Infantry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina. 3. He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 April 1982 for being absent without authority from his appointed place of duty on 16 April 1982. 4. He accepted NJP under the provisions of Article 15 of the UCMJ on 19 July 1982 for failing to go to his appointed place of duty on 17 July 1982. 5. A DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on 14 July 1982 and approved on 22 July 1982, barring him from reenlistment by the reason of his receipt of NJP. 6. The applicant was reported as AWOL on or about 17 January 1983. He was dropped from the rolls of the Army on or about 16 February 1983. He was apprehended by military authorities on 16 February 1983 and was assigned to Personnel Control Facility, Fort Knox, Kentucky. 7. Court-martial charges were preferred against him on 22 February 1983 for being AWOL from on or about 17 January 1983 through on or about 16 February 1983. 8. He consulted with legal counsel on or about 25 February 1983 and 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 of 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 further acknowledged 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. e. He was advised he could request a physical prior to his separation; however, he elected not to have a separation physical. 9. The Commander of the U.S. Army Armor Center and Fort Knox approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and discharged under other than honorable conditions. 10. The applicant was discharged accordingly on 14 April 1983. The DD Form 214 he was issued shows: * he was credited with the completion of 1 year, 8 months, and 22 days of net active service during this period of enlistment * 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 * he was issued an under other than honorable conditions discharge * he had lost time from 17 January 1983 through 15 February 1983 11. There is no indication that 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 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. b. 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. c. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's record shows he accepted NJP on more than one occasion. He was AWOL for a prolonged period of time and returned to military control due to being apprehended by military authorities. 2. Eventually, 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 from the Army in order to avoid trial by court-martial. 3. His 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. There is no indication the request was made under coercion or duress. His discharge accurately reflects his overall record of service. 4. Based on his indiscipline, 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. 5. The applicant is advised that he may obtain information on how to get a copy of his medical and health records by contacting the Department of Veterans Affairs, Records Management Center, in St. Louis, MO, toll free at 1-800-827-1000. He may also request a copy of his personnel records online at www.archives.gov/veterans/military-service-records/. 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) AR20150003489 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1