IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013622 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: 20 September 2016 DOCKET NUMBER: AR20150013622 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: 20 September 2016 DOCKET NUMBER: AR20150013622 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 (UOTHC) discharge. 2. The applicant states he exited the service due to a family hardship and he was informed that his discharge could be changed after 6 months. 3. The applicant provides no additional documentation in support of his application. 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 8 August 1989, the applicant enlisted in the Regular Army. 3. A DD Form 458 (Charge Sheet) shows the applicant was pending a court-martial for leaving his unit in an absent without leave (AWOL) status on 11 June 1990. 4. A DA Form 4187 (Personnel Action) shows the applicant surrendered to military authorities at Fort Ord, CA, on 16 July 1990 and he was transported to the Personnel Control Facility at Fort Ord. 5. On 24 July 1990, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an UOTHC discharge, and of the procedures and rights available to him. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial and admitted that he was guilty of the charge against him. 6. In his request for discharge, the applicant acknowledged he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected not to make a statement in his own behalf. 7. On 9 October 1990, an authorized official approved the applicant?s request for discharge, directed that he be reduced to the rank of private/E-1, and directed he receive a UOTHC discharge. 8. He was discharged on 22 October 1990 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations ? Enlisted Personnel), for the good of the service. His service was characterized as UOTHC. 9. 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: 1. Army Regulation 635-200 (Personnel Separations ? Enlisted Personnel) 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. A UOTHC discharge is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier?s service has generally met standards of acceptable conduct and duty performance. 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 an HD. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under 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. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 2. His separation was in compliance with applicable regulations; there is no evidence of procedural or administrative errors which would have jeopardized his rights. The type of discharge directed was appropriate. 3. There is no documentation in the applicant?s record, nor does he provide any that shows his misconduct was a result of a hardship or that he requested assistance from his chain of command due to a hardship. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013622 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013622 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2