IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009682 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: 26 April 2016 DOCKET NUMBER: AR20150009682 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. IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009682 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 to an honorable discharge. 2. The applicant states he served his country overseas and he served honorably. He believes he deserves a second chance. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 the cases 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. 2. The applicant enlisted in the Regular Army on 11 July 1984, for 4 years. He held military occupational specialty 13B (cannon crewmember). He served in Korea from 2 November 1984 through 31 October 1985. He was promoted to pay grade E-4 on 1 October 1985. 3. His record contains six DA Forms 4187 (Personnel Action) showing : * 9 December 1986 – he was confined by civilian authorities, he appeared in civil court and the charge was dropped, and he was returned to military control on the same day * 11 March 1986 – he was reported absent without leave (AWOL) * 14 March 1986 – he surrendered to military authorities and returned to military control * 16 March 1986 – he was reported AWOL * 9 April 1986 – he was confined by civilian authorities * 24 April 1986 – he was returned to military control 4. He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on 15 May 1986, for being AWOL from 11 through 14 March 1986 and from 16 March through 9 April 1986. His punishment included a reduction to pay grade E-2, a forfeiture of pay for 2 months, and 45 days of restriction and extra duty. He elected not to appeal. 5. His record further contains two DA Forms 4187 showing he was reported AWOL on 16 June 1986 and dropped from the rolls of his organization on 15 July 1986. 6. On 18 December 1986, a DD Form 458 (Charge Sheet) shows a court-martial charge was preferred against the applicant for being AWOL from 16 June 1986 to on or about 9 December 1986. 7. On 19 December 1986, after consulting with counsel, the applicant submitted a statement admitting that he knowingly, willingly, and voluntarily was AWOL. He 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. He acknowledged that he could be discharged under other than honorable conditions and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 8. On 31 December 1986, the applicant's chain of command recommended approval of the applicant's discharge. 9. On 6 January 1987, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1. 10. He was discharged accordingly on 5 February 1987. He was credited with completing 1 year, 11 months, and 21 days of net active service this period with 219 days of time lost. His service was characterized as an under other than honorable conditions. 11. There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must include the individual’s admission of guilt. The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 3-7a – provides an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – provides a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The evidence shows upon his receipt of court-martial charges and after consulting with counsel he elected to be discharged instead of facing the possibility of a bad conduct or dishonorable discharge. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He also acknowledged that he could be furnished an under other than honorable conditions discharge. The separation authority approved his request and he was discharged accordingly. 2. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would support an upgrade of his discharge. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. 3. Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. His service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009682 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009682 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2