IN THE CASE OF: BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150012590 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: 8 September 2016 DOCKET NUMBER: AR20150012590 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: 8 September 2016 DOCKET NUMBER: AR20150012590 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 discharge under other than honorable conditions to honorable or general under honorable conditions. 2. The applicant states: a.  On or about 8 September 1988, he was contacted by the American Red Cross and he was told his mother had breast cancer. His mother needed to have surgery and she would only have the surgery if he could return home. b.  He requested emergency leave and his commander advised him he could not grant his emergency leave request because his mother had not been diagnosed as terminal; however, he could grant him regular leave under emergency conditions. c.  His commander told him he would grant him 45 days of leave. His first sergeant advised him that the battalion was going to the field in less than 3 weeks and that he had to go. His first sergeant also advised him that he was only going to be granted 15 days of leave. d.  He went on leave to be with his mother and at the end of his leave, his mother was still recouping from surgery and very distraught over losing her breast. He went to the recruiting office in Fort Wayne, IN, to see if he could get assistance in extending his leave. His leave extension request was denied. e.  He was told he needed to report back to his unit in Germany. He was upset and disappointed and he made a bad decision not to return which resulted in being absent without leave (AWOL). f.  He was subsequently taken to Fort Knox, KY, where he spent 4 weeks. He was asked if he wanted to continue his service or be discharged. He chose discharge. Looking back, he realizes he should have returned to his unit and saved himself from all the grief. However, it was unjust for his first sergeant to change his leave from 45 days to 15 days after his commander approved his leave. 3. The applicant provides a self-authored statement. 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 19 June 1984. 3. On 22 August 1988, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully appropriating a radiological, biological, and chemical protective mask on or about 5 August 1988. 4. On 11 September 1988, his duty status changed from present for duty to AWOL. 5. On 10 October 1988 his duty status changed from AWOL to dropped from the rolls. 6. On 10 November 1988, his duty status changed from dropped from the rolls to present for duty. 7. On 22 November 1988, charges were preferred against him for being AWOL from on or about 11 September 1988 until on or about 10 November 1988. 8. On 23 November 1988, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge; the effects of requesting discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and the rights available to him. 9. After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He acknowledged his guilt and that: * he understood he could be discharged under other than honorable conditions * as a result of such a discharge, he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge * he did not elect to submit a statement in his own behalf 10. On 17 February 1989, the separation authority approved the applicant's request for discharge and directed the characterization of his service as under other than honorable conditions and reduction to private/E-1. 11. On 30 March 1989, he was discharged accordingly. His DD Form 214 shows he completed 4 years, 7 months, and 13 days of active service with lost time from 11 September 1988 through 9 November 1988. 12. 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. 13.  His records are void of and he failed to provide any evidence showing his commander signed a leave form authorizing him 45 days of leave. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for 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 have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. b.  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.  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. Although he contends his commander approved 45 days of leave, his records are void of and he failed to provide any evidence to support this. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 3. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012590 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012590 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2