BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150015632 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: 2 February 2017 DOCKET NUMBER: AR20150015632 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: 2 February 2017 DOCKET NUMBER: AR20150015632 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. 2. The applicant states he made some poor choices while in the Army. He was discharged 22 years ago and has not been in trouble since. He has not been arrested and has been a model citizen. He was employed for 15 years until the company downsized and he was laid off. He attended college and was certified as an automobile mechanic. He would like his current status taken into consideration. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 June 1993; State of North Carolina Criminal Record Search, dated 9 September 2015; and two printouts detailing motor vehicle violations. 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 21 June 1977. He completed his initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman). 3. The applicant was assigned to 1st Battalion, 7th Infantry Regiment, Federal Republic of Germany, on 26 October 1977. 4. The applicant's unit reported him absent without leave (AWOL) on or about 20 July 1978. He was dropped from Army rolls on or about 18 August 1978 and he was apprehended by civilian authorities and returned to military control on or about 19 March 1993. 5. The applicant's discharge packet is not available for review; however, his record contains a DD Form 214. This form shows he was discharged on 4 June 1993, in the rank/grade of private/E-1, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial, and issued an under other than honorable conditions discharge. His DD Form 214 confirms he completed 1 year, 3 months, and 14 days of net active service during this period of enlistment, and he had lost time from on or about 20 July 1978 through on or about 19 March 1993. 6. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 7. The applicant provides a State of North Carolina Criminal Records Search showing no infractions and two printouts showing minor traffic violations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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 honorable discharge. c. 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. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the 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. The service of Soldiers separated under this authority would normally be characterized as under other than honorable conditions. DISCUSSION: 1. The applicant's record is void of the specific facts and circumstances surrounding his discharge. His record does show he was AWOL from on or about 20 July 1978 to 20 March 1993 until he was apprehended by civilian authorities and returned to military control. It appears he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge, after which he was discharged under the provisions of Army Regulation 635-200, chapter 10. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment. The characterization of service he received was commensurate with the authority for his discharge. Absent evidence to the contrary, regularity must be presumed in this case. 3. The applicant's post-service academic accomplishments and conduct are noted; however, they do not mitigate the seriousness of the misconduct for which he was discharged. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015632 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015632 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2