IN THE CASE OF: BOARD DATE: 1 MARCH 2016 DOCKET NUMBER: AR20150007744 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 IN THE CASE OF: BOARD DATE: 1 MARCH 2016 DOCKET NUMBER: AR20150007744 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. Enclosure 1 IN THE CASE OF: BOARD DATE: 1 MARCH 2016 DOCKET NUMBER: AR20150007744 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 discharge under other than honorable conditions. 2. The applicant states: * his discharge was unjust because the counsel was counselor for the service and for him * he underlined pertinent parts of his discharge packet for the Board's review * his drinking troubles started in the Army and he was not provided any rehabilitation classes to enable him to improve his life in the Army * he has come to understand that he had a right to paid counsel at the time of his discharge * after training for Operation Desert Storm, he witnessed something that affected his judgment of the Armed Services * while training at Fort Irwin, CA, he witnessed tanks driving over cliffs in a sand storm, commanders putting Soldiers in harm's way, and a flood that almost took all of them * he believes that is what caused him to drink and lose control of himself * even his family members could tell he was not the same after he came home from Fort Irwin, CA * he believes he was not to blame for his mistakes * he is not claiming that he didn't do what he did, but believes he deserved the opportunity for rehabilitation 3. The applicant provides: * self-authored statement * request for discharge for the good of the service, dated 28 August 1985 * 2d Support Battalion endorsement of discharge for the good of the service, dated 4 September 1985 * first page of Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, memorandum to applicant, dated 9 September 1985 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 3 August 1982. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 March 1985 for operating a vehicle while drunk. 4. Multiple DA Forms 4187 (Personnel Action) show his duty status was changed from: * present for duty to absent without leave (AWOL) on 27 April 1985 * AWOL to dropped from the Army rolls as a deserter on 27 May 1985 * dropped from the Army rolls to present for duty upon his return to military authorities on 1 June 1985 5. A DD Form 458 (Charge Sheet) shows he was charged on 28 May 1985 at the 2d Support Battalion, Fort Riley, KS, with being AWOL from his unit from 27 April 1985 through an unstated date. 6. On 28 August 1985, 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. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He stated in his request that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. He did not submit statements in his own behalf. 7. The third page of his request for discharge for the good of the service includes the following statement signed by his defense counsel, a major in the Judge Advocate General's Corps: Having been advised by me of the basis of his contemplated trial by court-martial and the maximum permissible punishment authorized under the [UCMJ; of the possible effects of an Under Other Than Honorable Discharge if this request is approved; and of the procedures and right available to him, [Applicant] personally made the choice indicated in the foregoing request for discharge for the good of the Service. 8. A DA Form 3822-R (Report of Mental Status Evaluation), dated 17 September 1985, shows he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 9. On 19 September 1985, he was discharged under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years and 12 days of total active service. His DD Form 214 shows the dates of lost time during this period as 27 April 1985 through 31 May 1985. 10. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized sentence 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 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 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: 1. The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered. 2. His records show he accepted NJP under the provisions of Article 15 of the UCMJ for operating a vehicle while drunk and that he was AWOL 27 April 1985 through 1 June 1985, totaling 36 days of lost time. These offenses are punishable under the UCMJ with a punitive discharge. 3. He consulted with defense counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. There is no indication the applicant sought and was denied a right to paid legal counsel or that his appointed legal counsel displayed a bias for the Army and as such did not adequately advise him. 4. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He acknowledged that under no circumstances did he desire further rehabilitation or continued military service and it was deemed by his chain of command that further efforts toward rehabilitation would be fruitless. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150007744 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2