IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017177 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: 4 April 2017 DOCKET NUMBER: AR20150017177 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: 4 April 2017 DOCKET NUMBER: AR20150017177 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 to an honorable discharge. 2. The applicant states his wife was sick and he had four children at the time of his discharge. His wife's medical files at Fort Hood, TX, and Fort Huachuca, AZ, document that she was seen by doctors on numerous occasions. This issue resulted in his emergency leave from Germany and then his discharge. His only choice was to accept an under other than honorable conditions discharge due to family hardship. His previous conduct in the military was honorable. 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 the cases 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. 2. The applicant enlisted in the Regular Army (RA) on 15 January 1976 and he held military occupational specialty 11B (Infantryman). He was honorably released from active duty on 14 January 1980 and was transferred to the U.S. Army Reserve. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 4 years of active service. 3. He reenlisted in the RA on 8 April 1981 for 3 years. He served in Germany from 20 August 1982 to 5 September 1985. 4. He was reported absent without leave (AWOL) on 13 November 1982 and was dropped from the rolls of his organization on 12 December 1982. He surrendered to military authorities on 13 January 1983 and he was returned to duty. 5. On 25 January 1983, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Company, Personnel Control Facility, Fort Sill, OK. The applicant was charged with one specification of being AWOL from 13 November 1982 to 13 January 1983. Court-martial charges were preferred against him on the same date. 6. On 26 January 1983, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He acknowledged that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person. He also acknowledged that he had been advised of the implications that were attached to it and that he was guilty of the charges against him. Further, he acknowledged that he understood he could be discharged under other than honorable conditions, furnished an Under Other Than Honorable Conditions Discharge Certificate, and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 7. On 17 February 1983, his company commander recommended approval of his request and the issuance of an under other than honorable conditions discharge. The commander stated the applicant was charged with 61 days of lost time and that he had become disillusioned with the military. The commander believed rehabilitative efforts would be futile. 8. On 24 February 1983, the separation authority approved his request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to pay grade E-1. 9. He was discharged accordingly on 8 March 1983. He completed 2 years of active service and he had 61 days of time lost. His service was characterized as under other than honorable conditions. 10. There is no evidence he petitioned the Army Discharge Review Board within its 15 years statute of limitations for an upgrade of his discharge. REFERENCES: AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – A member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a 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 include the individual’s admission of guilt. The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 2. After consulting with counsel he acknowledged that he had been advised of the implications that were attached to the discharge and that he was guilty of the charges against him. Further, he acknowledged that he understood he could be discharged under other than honorable conditions, furnished an Under Other Than Honorable Conditions Discharge Certificate, and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. He was discharged accordingly. 3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. The characterization of his service was commensurate with the reason for 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) AR20150017177 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017177 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2