IN THE CASE OF: BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017402 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 April 2017 DOCKET NUMBER: AR20150017402 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 April 2017 DOCKET NUMBER: AR20150017402 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 to a general discharge. 2. The applicant states an upgrade would provide him with a better living situation. He is currently disabled and is living in St. Leo Residence, a Catholic Charities residence for veterans. He has no police record or convictions since his separation. He has worked steadily from 1990 until 2008. He has made major improvements in his life in hopes of obtaining a discharge upgrade. He is sorry for his past mistakes and he is still proud to have had served our country. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Certificate of Achievement * Certificate of Completion of Basic and/or Refresher Training as Required by the Illinois Private Detective, Private Alarm, Private Security, and Locksmith Act of 2004 * Security Training Academy * Certificate of Custodian Eligibility * Certificates of Judge of Elections * Social Security letter * Catholic Charities Housing Development – Verification of Disability * pharmacy prescription * referral to physical therapy 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 14 July 1981 and he held military occupational specialty 76Y (Unit Supply Specialist). 3. He served in the Sinai from 18 January 1983 to 19 July 1983. He was mostly assigned to Fort Bragg, NC, and he attained the rank/grade of specialist four/E-4 in April 1983. He reenlisted on 30 January 1984. 4. His DA Form 2-1 (Personnel Qualification Record) shows he was reduced to private first class (PFC)/E-3 on 3 April 1984 and to private (PV2)/E-2 on an unknown date. He was advanced back to PFC/E-3 in November 1985 and then reduced to PV2/E-2 in August 1986. 5. His records contain multiple DA Forms 4187 (Personnel Action) showing his duty status changed as follows: * he departed his unit in an absent without leave (AWOL) status on 10 August 1984 and returned to duty on 6 September 1984 * he was confined by civilian authorities (Cumberland County, NC) on 7 September 1984 and returned to duty on 18 September 1984 * he was confined by civil authorities at the Cumberland County Jail on 10 October 1984 and returned to duty on 24 October 1984 6. On 10 September 1986, he departed his unit in an AWOL status and on 10 October 1986, he was dropped from the Army rolls as a deserter. He ultimately surrendered to military authorities on 8 March 1988. 7. On 10 March 1988, his chain of command prepared a DD Form 458 (Charge Sheet). This form shows court-martial charges were preferred against him for one specification of being AWOL from on or about 10 September 1986 to 8 March 1988. 8. On 10 March 1988, the applicant consulted with legal 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 a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service * he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf 9. On 31 March 1988, the applicant's immediate and intermediate commanders recommended approval of his voluntary discharge request with the issuance of a discharge under other than honorable conditions. 10. On 7 April 1988, following review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted grade and discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service. Accordingly, the applicant was discharged on 16 May 1988. 11. His DD Form 214 shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. He completed a total of 5 years, 2 months, and 14 days of active service and he had lost time from 10 August to 5 September 1984, 7 to 17 September 1984, 10 to 23 October 1984, and 10 September 1986 to 7 March 1988 (which was 545 days duration). 12. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge processing within that board's 15-years statute of limitations. 13. He provides multiple post-service certificates of training/completion. In 2014, he was receiving disability benefits from the Social Security Administration and in 2015, he received disability verification to reside in St. Leo Residence. He is receiving medical treatment for hypertension and osteoarthritis. REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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, an under other than honorable conditions discharge is normally considered appropriate. 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. DISCUSSION: 1. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 635-200 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. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received is commensurate with the reason for his discharge. 3. His post-service accomplishments, disability status, and current medical conditions are noted. Post-service conduct and personal circumstances are not normally a basis for changing a characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017402 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017402 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2