BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20150017947 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: 18 May 2017 DOCKET NUMBER: AR20150017947 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: 18 May 2017 DOCKET NUMBER: AR20150017947 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 either an honorable or general discharge. 2. The applicant states he was unaware of a 10-year grace period for his discharge to be upgraded. He served faithfully for the first 2 years of his service. His problems began with his wife's hospitalization. He now has no medical insurance and he is unable to receive medical help without insurance. He is now homeless and suffering with several medical conditions. He needs help. Throughout his life he has been a model citizen. He is a deacon at his church and his pastor has witnessed his path of righteousness. His brother is retired from the Army and works as an Army contractor with assignments around the world. 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 on 28 March 1979 and he held military occupational specialty 11C (Indirect Fire Infantryman). He was promoted to private first class/E-3 on 1 December 1979. He was assigned to Fort Stewart, GA. 3. He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on/for: * 20 May 1980 – being absent without leave (AWOL) from 21 to 25 April 1980; his punishment consisted of a forfeiture of $85.00 pay for 1 month and extra duty and restriction for 10 days * 5 August 1980 – wrongfully possessing marijuana on 2 May 1980; his punishment consisted of a reduction to pay grade E-1, a suspended forfeiture of $224.00 pay for 2 months, and extra duty for 30 days 4. He was reported AWOL on 5 December 1980 and was dropped from the rolls of his organization on 4 January 1981. He surrendered to military authorities on 26 January 1981 and was transferred to the Personnel Control Facility (PFC), Fort Bragg, NC. 5. On 29 January 1981, court-martial charges were preferred against the applicant for one specification of AWOL from 5 December 1980 to 26 January 1981. 6. On 4 February 1981, the applicant underwent a mental status evaluation and was found to have met medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness). 7. On 5 February 1981, after consulting with counsel, the applicant requested discharge under the provisions of AR 635-200 (Personnel Separations – Enlisted Administrative Separations), chapter 10, for the good of the service – in lieu of trial by court-martial. He acknowledged 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. 8. On 6 February 1981, the PCF commander stated he had interviewed the applicant and the applicant stated he was AWOL due to family problems. The applicant went home on a 30-day-leave prior to reporting to his new unit, he found his pregnant wife was hospitalized with a kidney infection, and at the completion of his leave he could not bring himself to leave his wife. He decided to remain at home in an AWOL status. On 26 January 1981, the applicant surrendered to military authorities and was subsequently sent to the PCF. The applicant stated that he could not remain in the Army under the circumstances as he needed to return home to his family right away. The applicant left no doubt in his mind that he [applicant] would go AWOL again, if necessary, to accomplish that. 9. On 6 February 1981, the applicant's senior commander recommended approval of the applicant's request and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 10. On 27 February 1981, a member of the Judge Advocate General's Corps recommended approval of the applicant's request. 11. On 3 March 1981, the separation authority approved his request and directed the issuance of an Under Other Than Honorable Discharge Certificate and reduction to pay grade E-1. 12. The applicant was discharged accordingly on 13 March 1981. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 10 months, and 1 day of active service and had 58 days of time lost. His service was characterized as under other than honorable conditions. 13. There is no indication 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 have included 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 UCMJ 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 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. He was discharged accordingly. 3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. The separation authority determined his service did not rise to the level required for an honorable or a general discharge. 4. The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017947 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017947 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2