IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150011995 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: 7 July 2016 DOCKET NUMBER: AR20150011995 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: 7 July 2016 DOCKET NUMBER: AR20150011995 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, in effect, he was harassed by Private (PVT) S and misconduct took place on the part of PVT H. Medical surgery took place and still the verbal abuse and harassment in the workplace did not stop. A PVT punched his hand as hard as he could when they were getting pictures for the Army Identification (ID) [card]. The harassment that took place will be reported to [President] Obama if we do not listen to how our Soldiers treated him. 3. The applicant provides no additional evidence. 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 28 August 2002 for a period of 3 years, training in military occupational specialty (MOS) 77F (Petroleum Supply Specialist), assignment to Europe, and a $5,000 enlistment bonus. 3. He completed basic training and on 8 November 2002 he was assigned for advanced individual training (AIT) in MOS 77F to V Company, 262nd Quartermaster Battalion, Fort Lee, VA. 4. On 4 January 2003, he was reported as absent without leave (AWOL) from his assigned unit and on 3 February 2003 he was dropped from the rolls (DFR) as a deserter. 5. On 26 June 2003, he was apprehended by civilian authorities and turned over to military control on 27 June 2003. He was subsequently assigned to the U.S. Army Personnel Control Facility (PCF), Fort Sill, OK. 6. On 3 July 2003, court-martial charges were preferred against him for one specification of being AWOL from on or about 4 January 2003 to 27 June 2003 (174 days or 5 months and 24 days). 7. On 11 July 2003, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial. 8. In his request for discharge, he acknowledged he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged, he understood that if his discharge request was approved he may be discharged under other than honorable conditions, he would 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 benefits as a veteran under both Federal and State laws. He declined to submit a statement on his own behalf. 9. On 11 July 2003, he was placed on excess leave pending the processing of his request for a discharge. 10. On 4 August 2003, his immediate commander recommended approval of his request for discharge with an under other than honorable conditions characterization of service. He stated the applicant had become disillusioned with the military and his retention was not in the best interests of the Army. 11. On 25 August 2003, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed the issuance of an under other than honorable conditions discharge. On 17 September 2003, he was discharged accordingly. 12. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service. He completed 6 months and 26 days of net active service of which 69 days was excess leave. He had 5 months and 24 days of lost time due to being AWOL. 13. His record is void of any evidence that shows he notified his chain of command that he was subject to verbal abuse and/or harassment from other Soldiers at the time of his service. 14. His medical records are not available for view with this case. His available record is void of any evidence that shows he was treated for/or diagnosed with any medical/mental issues while serving on active duty. 15. On 25 February 2013, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper an equitable. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A discharge under other than honorable conditions was 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 states 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 evidence of record confirms the applicant 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. 2. As such, he voluntarily requested a discharge to avoid a trial by court-martial and by doing so he admitted he was guilty of the charges preferred against him. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 3. Notwithstanding the applicant's contention that he had been subject to verbal abuse and harassment at the time of his service, the evidence of record is void any evidence and he has not provided any evidence that supports this contention. 4. The evidence of record shows at the time his discharge he had almost 6 months of lost time due to being AWOL. Based on this record of misconduct, his service clearly did not meet the criteria for a general or an honorable 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) AR20150011995 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011995 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2