IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150012125 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: 23 August 2016 DOCKET NUMBER: AR20150012125 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: 23 August 2016 DOCKET NUMBER: AR20150012125 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 that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge (HD). 2. The applicant states he has been discharged from the U.S. Army for a total of 34 years and deeply feels that his discharge should be upgraded from his current status to an HD. 3. The applicant does not provide any supporting documentation. 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 22 August 1978, the applicant enlisted in the Regular Army. He enlisted at the age of 19 years old. After initial training, he was awarded military occupational specialty 19F (Tank Driver). 3. On 28 August 1979, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for possession of an ounce, more or less, of marijuana. He received a reduction in pay grade to private (PVT)/E-1 suspended for 1 month, forfeiture of pay of $109.00 (suspended for 1 month), and extra duty for 14 days. 4. A DA Form 4187 (Personnel Action) shows the applicant was in an absent without leave (AWOL) status on 26 June 1980. 5. A DA Form 4187 shows the applicant surrendered to military authorities on 6 April 1981. 6. His record contains a DD Form 458 (Charge Sheet), dated 21 April 1981, that shows he was pending a special court-martial for one specification of violating Article 86 of the UCMJ by being AWOL from his unit from on or about 26 June 1980 to 6 April 1981. 7. On 22 April 1981, DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant received a mental health evaluation and was deemed to have the mental capacity to understand and participate in the proceedings and was mentally responsible for his actions. 8. On 22 April 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 UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him. Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 9. He acknowledged he understood the elements of the offense he was charged with and he was: * making the request of his own free will * acknowledging that he was guilty of the charge * advised he may be furnished an UOTHC Discharge Certificate * advised he could submit statements in his own behalf 10. In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he: * would be deprived of many or all Army benefit * may be ineligible for many or all veteran's benefits * may be deprived of his rights and benefits as a veteran under both Federal and State laws 11. The applicant indicated he would not submit a statement in his own behalf. 12. On 22 April 1981, his command recommended approval of his request and recommended issuance of a UOTHC Discharge Certificate. 13. On 23 July 1981, the separation authority approved his request, directed he receive a reduction to the lowest enlisted grade unless already serving in that grade, and a UOTHC discharge. 14. On 3 August 1981, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, with a service characterization of UOTHC. He completed a total of 2 years, 2 months, and 3 days of creditable active military service. He had 254 days of lost time from 26 June 1980 to 5 April 1981. 15. There is no indication he applied to 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 sets forth the basic authority for the separation of enlisted personnel. a. 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 at any time after the charges have been preferred. An unauthorized absence in excess of 30 consecutive days can lead to a punitive discharge or confinement under the Manual for Courts-Martial. b. Paragraph 3-7a, provides that an HD 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. Whenever there is doubt, it is to be resolved in favor of the individual. c. 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 HD. DISCUSSION: 1. The applicant's request that his UOTHC discharge be upgraded to an HD was carefully considered. 2. The applicant’s record shows he was 19 years of age at the time of his enlistment and 20 years old at the time of his offenses. There is no evidence indicating that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 3. His record shows he was charged with the commission of an offense punishable under UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a punitive discharge. 4. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. Further, 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) AR20150012125 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012125 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2