IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010333 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: 12 May 2016 DOCKET NUMBER: AR20150010333 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: 12 May 2016 DOCKET NUMBER: AR20150010333 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, in effect, an upgrade of his service characterization from under other than honorable conditions to under honorable conditions (general). 2. The applicant states: * he was told by a captain at Fort Knox that if he signed discharge paperwork and worked in the civilian world for 2 straight years without problems, his discharge would be changed to honorable * he was going through a separation from his fiancée and it involved a minor child, he acted without regard to his service commitment * he understands he should have sought council and assistance, perhaps he would have been given time off to settle the situation 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). His application also references a report from the Social Security Administration, which he contends shows he worked every year from 1976 to 2009; however, this report was not included 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. The applicant enlisted in the Regular Army on 26 March 1981. Following the completion of his initial entry training, he was awarded military occupational specialty 12C (Bridge Crewman). The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3. 3. The applicant was reported as absent without leave (AWOL) on 1 July 1982. He was dropped from the rolls of the Army on 1 August 1982. He was apprehended by civilian authorities on or about 27 April 1983 and was assigned to the Personnel Control Facility, Fort Knox, Kentucky. 4. On 6 May 1983, he acknowledged he had been counseled on the requirements for completion of a medical examination prior to separation. He elected not to have a separation physical. 5. On 9 May 1983, court-martial charges were preferred against him for being AWOL from on or about 1 July 1982 through on or about 27 April 1983, a period of 9 months and 27 days (300 days). 6. On or about 11 May 1983, he consulted with legal counsel and voluntarily 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. In his request for discharge, he acknowledged: a. He understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. b. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. c. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. e. He was advised he could request a physical prior to his separation; however, he elected not to have a separation physical. 7. The approval authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and discharged with an under other than honorable conditions character of service. 8. The applicant was discharged on 6 June 1983. The DD Form 214 he was issued shows: * he was credited with the completion of 1 year, 2 months, and 16 days of net active service * he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial * his service was characterized as under other than honorable conditions * he had lost time from 23 March 1982 through 21 May 1982 and from 1 July 1982 through 26 April 1983 9. There is no indication he 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. a. Paragraph 3-7b states 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. b. 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. DISCUSSION: 1. The applicant's request for an upgrade of his service characterization from under other than honorable conditions to under honorable conditions (general), was carefully considered. 2. The applicant's record shows he was AWOL for a prolonged period of time and was apprehended by civilian authorities. His DD Form 214 shows he had an additional period of lost time of 60 days. 3. Subsequent to his return to military control, court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial and a potential punitive discharge. 4. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. His service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel and his discharge accurately reflects his overall record of service. 5. He contends he was AWOL as a result of a hardship/separation issue with his fiancée and it involved a minor child. However, there is no evidence nor has he provided evidence that shows this was a mitigating factor in his misconduct. 6. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the passage of time. Each case is decided on its own merits when an applicant requests a change. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010333 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010333 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2