IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150010708 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 May 2016 DOCKET NUMBER: AR20150010708 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 May 2016 DOCKET NUMBER: AR20150010708 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 excelled as a Soldier until his father-in-law was stricken with a terminal illness * his wife at the time, being the only child, wanted to tend to her father * his wife received counselling from the post chaplain and medical treatment for depression and suicidal thoughts * he applied for a compassionate reassignment to the metropolitan Atlanta area, where his father-in-law resided * his request was denied and he was instructed to return to Fort Hood Texas; he complied with the instructions * his wife left him and took the children with her to Georgia * he requested leave to find her because of her medical conditions and because she had his children; however, his leave was denied * on that Friday, he departed for the weekend to locate her and his children but did not find them * he has since divorced her, remarried, and now has four children * he made an impulsive decision as a 19 year old * at the time, he thought he made the right decision for his family and felt the Army was insensitive to his situation * he wishes to serve as a state police trooper and he asks for a pardon and an honorable discharge 3. The applicant provides no additional evidence in support of his request. 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 25 July 1996. After completing his initial entry training, he was awarded military occupational specialty 12B (Combat Engineer). The highest rank/grade he attained while serving on active duty was private two (PV2)/E-2. 3. The applicant was reported by his unit as absent without leave (AWOL) on 1 April 1997. He was dropped from the rolls of the Army on 1 May 1997. He surrendered to military authorities at Fort Knox, Kentucky, on or about 29 September 1997 and was assigned to the Personnel Control Facility, Fort Knox, Kentucky. 4. Court-martial charges were preferred against him on 30 September 1997 for being AWOL, from on or about 10 April 1997 [sic] through on or about 29 September 1997, a period of 5 months and 29 days (182 days). 5. Following consultation with counsel on or about 30 September 1997, he 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 and elected to do so. In his statement to the separation authority, he: * requested an under honorable conditions (general) discharge * stated that his request for a compassionate reassignment was denied; however, he had already procured housing in the area he had requested his compassionate reassignment * stated he had requested a hardship discharge but his unit was in the process of deploying to Kuwait; he was given the run-around for 2 weeks straight about his discharge request, which led him to go AWOL 6. The approval authority approved his request for discharge on 5 December 1997, 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 that his service be characterized as under other than honorable conditions. 7. The applicant was discharged on 20 January 1998. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows: * he was credited with the completion of 11 months and 25 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 1 April 1997 through 28 September 1997 8. 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 3-7a 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. c. Chapter 10 provides 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 a discharge upgrade from an under other than honorable conditions discharge to an honorable discharge was carefully considered. 2. He contends he went AWOL after the Army denied his request for a compassionate reassignment and his wife left him, with his children, to attend to her father's terminal illness. The available evidence shows he was granted leave while his request for a compassionate reassignment was being processed. However, the request was denied and after his return to his unit, he elected to go AWOL for 182 days. 3. He further contends he was a young man who made an impulsive decision. However, he was 21 years old at the time of his offense and there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 4. His record shows 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. 5. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010708 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010708 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2