BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150013478 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 BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150013478 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. BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150013478 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 (UOTHC) to a general discharge (GD). 2. The applicant states that he has led a good life free of bad choices and he has become a productive member of society. He attends church and participates in charitable events. He was young and overwhelmed by many pressures when he left the Army. It is his hope that the Board will see his sincerity and upgrade his discharge. 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. On 15 February 1983 the applicant enlisted in the Regular Army. He was 20 years of age. Upon completion of his initial training, he was assigned to Fort Bragg, NC, as a material control and accounting specialist. The highest rank/grade he attained was private first (PFC)/E-3. 3. The specific facts and circumstances of his discharge proceedings are not available for review; however, his records show: a. He accepted nonjudicial punishment on 6 September 1984 under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for feigning illness and being disrespectful to a noncommissioned officer. b. On 30 January 1985, charges were preferred against the applicant under the UCMJ for failing to go to his appointed place of duty; being absent without leave (AWOL) from 28 December 1984 to 2 January 1985; and stealing a case of lowering lines, valued at $965.92, the property of the U.S. Government. 4. Under the UCMJ, the maximum punishment allowed for these charges included a punitive discharge. 5. The applicant?s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 February 1985 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. His character of service is UOTHC. His period of time lost was from 27 December 1984 to 1 January 1985. His rank and pay grade are shown as private/E-1 with a date of rank of 11 February 1985. He had completed 2 years and 6 days of active service with no foreign service. 6. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. REFERENCES: 1. 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 and must include the individual's admission of guilt. The individual would have been counseled concerning the elements of the offense(s) charges and the maximum punishment authorized under the UCMJ for each offense. The counseling would include notification he could be deprived of many or all benefits administered by the Veterans Administration or under State or Federal laws. A discharge under other than honorable conditions is 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 provides that a GD 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests his discharge be upgraded to a GD. 2. He was 20 years of age at the time of his enlistment; however, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 3. His self-reported post-service achievements are noted. Good post-service conduct alone is not normally a basis for upgrading a discharge. Each case is considered on its own merits. 4. The evidence of record shows misconduct and criminal activity that included failing to go to his appointed place of duty, being AWOL, disrespecting a noncommissioned officer, and theft of government property. 5. The applicant's record shows he was charged with the commission of offense(s) 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. The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 6. Neither the applicant nor the evidence of record offer any indication his separation was not properly and equitably conducted in accordance with the regulations in effect at the time. Further, it is presumed all requirements of law and regulations were met, and the rights of the applicant 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) AR20150013478 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013478 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2