IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150007170 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 under other than honorable conditions (UOTHC) discharge. 2. The applicant states: a. He did not know how to handle the mental and emotional problems he was having during his out processing period. He considered himself to be strong and prideful and others saw him the same way. He did not want appear to be a weak Soldier or one that could not handle his issues. His former wife became very ill and has since died from cancer. b. His first sergeant had problems with him and was aware that he was under a considerable amount of stress. He did not expect special treatment; however, he did not want to be treated in a discriminating manner. He made a bad choice in the way he dealt with what was going on but he felt that he was losing control. He went absent without leave (AWOL) after two tours in Kuwait because his wife was sick. 3. The applicant provides an incomplete self-authored statement, a statement from the American Legion, and ten letters of support. 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 23 December 1987, the applicant enlisted in the U.S. Army Reserve Delayed Entry/Enlistment Program (DEP). 3. On 30 December 1987, he was discharged from the DEP, and he enlisted in the Regular Army for a period of 4 years. After completing initial entry training, he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman). The highest rank he attained was sergeant. 4. His DA Form 2-1 (Personnel Qualification Record) contains the following pertinent information: a. Item 5 (Overseas Service) shows he served a tour of duty in Saudi Arabia from 29 August 1990 to 24 March 1991. b. Item 21 (Lost Time) shows he had 464 days of lost time due to being AWOL. 5. Effective 21 September 1995, his status was changed from present for duty to AWOL. Effective 21 October 1995, his status was changed from AWOL to dropped from the rolls. 6. A DA Form 4187 (Personnel Action) shows he was apprehended by civilian authorities on 28 December 1996 and returned to military control on the same date. 7. A DD Form 458 (Charge Sheet), dated 3 January 1997, shows he was charged with being AWOL from 21 September 1995 to 28 December 1996. 8. On an unspecified date, he signed a memorandum, subject: Admission of AWOL for Administrative Purposes, declaring that he had been advised by counsel that the Government had not received the necessary documentation and/or records to obtain a conviction by a court-martial. This was not due to any fault of the Government, but merely due to the time required to request and mail documents and records. He acknowledged that his military counsel could not completely advise him without those records. Knowing that to be true, he waived all defenses that may have become known had his defense counsel been able to review his records, and he knowingly, willingly, and voluntarily declared that he was AWOL from 21 September 1995 to 28 December 1996. He made the admission for administrative purposes only so he could process out of the Army, and he acknowledged that in doing so he could be given a UOTHC discharge. 9. On 3 January 1997, counsel advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him. 10. After consulting with counsel, he requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged: * he understood the elements of the offense charged and was guilty of the charge against him or a lesser included offense which also authorized 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 * if his request was accepted, he could receive a UOTHC discharge * as a result of a UOTHC discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration * 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 a UOTHC discharge 11. He indicated that he did not intend to submit statements in his own behalf. 12. The available evidence shows his chain of command recommended he be discharged for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge. 13. On 6 March 1997, an authorized official approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge, and reduction to pay grade E-1. 14. On 16 April 1997, he was discharged accordingly. His DD Form 214 shows he completed 8 years and 3 days of total active service with lost time for the period 21 September 1995 to 27 December 1996. 15. There is no evidence in the applicant's service record which shows he sought assistance from his chain of command for issues involving personal problems or psychiatric-related problems, or that he notified his chain of command that his disciplinary problems were a result of these issues. 16. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 17. He provides 10 letters of support attesting to his character and a letter from the American Legion supporting his request. 18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment under the UCMJ includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his former wife’s medical condition and his mental and emotional problems contributed to his decision to go AWOL; however, there is no evidence showing that he sought assistance from his command for issues involving personal problems or psychiatric-related problems prior to going AWOL. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. His 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. 3. Based on his extensive period of AWOL, his service did not meet the standards of acceptable conduct and performance of Army personnel. 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) AR20150007170 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007170 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1