IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150015798 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: 2 February 2017 DOCKET NUMBER: AR20150015798 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: 2 February 2017 DOCKET NUMBER: AR20150015798 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, in effect, an upgrade of his discharge under other than honorable conditions. 2. The applicant states at the time, he really did not know the significance of the matter. He kept contact with his platoon sergeant, Staff Sergeant (SSG) LR, but he thinks SSG LR did not like him and he made it hard to be a great Soldier. He was young and a first time father; he thought he was doing the right thing by being there for his family. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 15 September 2015. 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 28 July 1992. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 63W (Wheeled Vehicle Repairer). 3. On or about 5 February 1993, he was assigned to Company B, 215th Forward Support Battalion, Fort Hood, TX. 4. A DA Form 4187-E (Request for Personnel Action), dated 10 February 1994, shows the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL) on or about 10 February 1994. 5. A DA Form 4187-E, dated 14 March 1994, shows the applicant's duty status was changed from AWOL to dropped from the rolls (DFR) on or about 12 March 1994. 6. A DA Form 4187-E, dated 31 March 1994, shows the applicant's duty status was changed from DFR to PDY on or about 18 March 1994, following his return to military control. 7. A DA Form 458 (Charge Sheet), dated 23 March 1994, shows court-martial charges were preferred against the applicant for being AWOL from his unit from on or about 9 February 1994 through on or about 18 March 1994. 8. The applicant consulted with legal counsel on 24 March 1994 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 under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge – in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions. He indicated he had been advised as to the possible effect of an under other than honorable conditions discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. b. He declined to make a statement in his behalf. 9. The applicant's immediate commander recommended his case be tried before a special court-martial due to the severity of the misconduct that resulted in the charges. 10. The applicant's battalion commander (delegated as separation authority) approved the applicant's request for separation on 12 May 1994, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be discharged under other than honorable conditions. 11. The applicant was discharged from the Army on 2 June 1994. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his character of service was under other than honorable conditions. He served on active duty for 1 year, 8 months and 27 days with time lost from 9 February to 18 March 1994 (38 days). 12. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. The ADRB denied his request for an upgrade of his discharge on 20 December 1996. 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 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered. The applicant contends his discharge should be upgraded because he was a first time father and thought he was doing the right thing by being there for his family. 2. The applicant enlisted in the Regular Army at 19 years of age. After serving on active duty for more than 1 year and 6 months, he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 4. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 5. The applicant had no record of indiscipline prior to going AWOL; however, he did, in fact, go AWOL for a period of approximately 38 days. Following his return to military control, he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge. His misconduct suggests his overall record of service did not rise to the level typically associated with the issuance of either an under honorable conditions (general) or honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015798 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2