IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150003990 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 to his record to show he received an honorable discharge (HD) vice an other than honorable (OTH) discharge. 2. The applicant states: a. His discharge was inequitable because it was based on one isolated incident during his 2 years of service. b. His conduct while in the military was outstanding in accordance with military standards. c. He was young, immature, and very indecisive at the time of his service. He made a very bad decision when he walked away from his duties. d. At the time, he going through a very painful period when he was notified by his aunt that his mother went missing. He requested a leave of absence in order to look for her. He searched for her for 7 months but could not locate her until the county morgue called him to identify the body. e. His mother’s body had been found in an abandoned apartment building. She had been the first victim of a serial killer. f. Years later he tried to reenlist but was turned down due to his age (32 years). g. It has been over 30 years now and he has punished himself for his actions and was too ashamed to ask for forgiveness from the U.S. Army. h. He did not know that his OTH discharge could be reversed. 3. The applicant provides: * DA Form 2-1 (Personnel Qualification Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Standard Form (SF) 93 (Report of Medical History) * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the U. S.) * DD Form 1966 (Record of Military Processing) * dental records * his mother's memorial service program * letters of reference * resume 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. On 7 February 1985, the applicant enlisted in the Regular Army at age 20. After completing initial entry training, he was awarded military occupational specialty 91A (Medical Specialist). 3. A DD Form 458 (Charge Sheet), dated 23 August 1988, shows he was charged with being absent without leave (AWOL) from 28 May 1986 to 8 August 1988. 4. On 23 August 1988, the applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an OTH discharge, and of the procedures and rights available to him. 5. On 24 August 1988, after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. He acknowledged that: * he could request discharge for the good of the service because a charge had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge * he was guilty of the charge against him or a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge * under no circumstances did he desire further rehabilitation for he had no desire to perform further military service * he understood he could be issued an OTH discharge * as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an OTH discharge b. He indicated he would not submit a statement in his own behalf. 6. On 2 September 1988, the separation authority approved the applicant's request and directed he be given an under other than honorable conditions discharge. On 13 October 1988, he was discharged in accordance with the separation authority's decision. His DD Form 214 shows he completed 1 year, 5 months, and 27 days of net active service this period. 7. The applicant provides: a. Several recommendations from individuals who knew him during boot camp and claim that he helped them through training. They state that he was an exemplary Soldier who contributed extensively to the advancement of all individuals. Even though it has been 30 years later, they believe he is the same genuine person. b. The program for his mother’s memorial service which shows she passed away in 1987. 8. 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 OTH 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 (GD) 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 HD. DISCUSSION AND CONCLUSIONS: 1. Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 2. The applicant states the reason for being AWOL was the extenuating circumstances involving his mother going missing and, later, her death; however, he provides no evidence or supporting documentation to support his claim that she went missing and was later was killed by a serial killer. 3. It appears that the applicant provides his DA Form 2-1 to show that he was a good Soldier during his enlistment, and a copy of his resume to show that over 30 years later he has become a better person. However, service prior to serious misconduct and post-service conduct are not normally a reason for upgrading a properly-issued discharge. 4. The applicant was AWOL for an extensive period from 1986 to 1988. Due to this misconduct, his service was unsatisfactory. 5. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant's records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ. All requirements of law and regulation were met and his rights were fully protected throughout the discharge process. 6. Considering the serious charges against him, the separation authority was justified in directing that he receive an OTH discharge. In the absence of evidence showing error or injustice in the separation authority's decision, there is an insufficient basis upon which to upgrade his discharge to an HD or a GD. 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) AR20140007657 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003990 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1