BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009261 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 BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009261 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. BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009261 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 discharge. 2. The applicant states his recruiter signed his mother’s name because he was 17 years old when he enlisted. His recruiter made a fake General Educational Development (GED) certificate and pulled out a blank social security card to type in his social security number. He was afraid the forgery of his mother’s name and GED scores would catch up to him, as his mother was totally against it. 3. The applicant provides no additional documents with his application. 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 29 May 1980, the applicant enlisted in the Regular Army with parental consent and entered active duty. 3. On 6 August 1980, while still attending his initial entry training, his duty status was changed from present for duty to absent without leave (AWOL). 4. On 21 August 1980, his duty status was changed from "confinement military authority" to present for duty. 5. On 23 August 1980, his duty status was changed from present for duty to AWOL. 6. On 24 August 1980, he was dropped from the rolls of the Army. 7. On or about 6 January 1981, he was returned to military control. 8. On 14 January 1981, charges were preferred against him for being AWOL from on or about 6 August 1980 through on or about 21 August 1980, and from on or about 23 August 1980 through on or about 6 January 1981. 9. On 14 January 1981, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. 10. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate. He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 11. On 10 February 1981, the separation authority approved his request for discharge and directed he be issued an under other than honorable conditions discharge. 12. On 20 February 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for administrative discharge conduct triable by court-martial, he completed 3 months and 21 days of creditable active military service. 13. 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. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. a. 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 clearly be inappropriate. b. 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 under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request. 2. There is no evidence in the available records to support the applicant’s contention that his enlistment documents were falsified, and he provides none. 3. The evidence of record shows the applicant was AWOL on at least two occasions and the second AWOL period resulted in his accrual of a significant amount of lost time. Accordingly, 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. 4. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors that 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. 5. Based on his record of indiscipline, including a violation of the UCMJ that resulted in court-martial charges, and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, it did not support the issuance of an honorable or general discharge by the separation authority at the time, and it does not support an upgrade of his discharge now. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009261 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009261 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2