BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150017999 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: 9 May 2017 DOCKET NUMBER: AR20150017999 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: 9 May 2017 DOCKET NUMBER: AR20150017999 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 (UOTHC) for the period ending 27 September 1990 to honorable. 2. The applicant states he wants his discharge upgraded in order to be eligible for and receive all benefits and compensations from the Department of Veterans Affairs. 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 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 5 November 1986 for a period of 2 years. On 2 November 1988, he was honorably released from active duty in the rank/pay grade of private first class/E-3 by reason of expiration term of service. He completed 1 year, 11 months, and 28 days of active service during this period. 3. He then enlisted in the Regular Army on 3 January 1990 for a period of 4 years. He was advanced to the rank/pay grade of specialist/E-4 effective 1 April 1990. 4. On 22 June 1990, he was convicted by a summary court-martial of leaving his appointed place of duty without authority and disobeying two lawful orders from a noncommissioned officer. He was sentenced to forfeiture of two-thirds pay for 1 month, restriction for 45 days, and reduction to private two/E-2. On 22 June 1990, the convening authority approved the sentence. 5. On 5 September 1990, court-martial charges were preferred against him for assaulting a female Soldier and communicating a threat to the same female Soldier concerning the assault. 6. On 10 September 1990, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge he was guilty of the charge(s) against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected not to make a statement in his own behalf. 7. On 21 September 1990, the separation authority approved his request and directed his immediate reduction to the rank/pay grade of private/E-1 and discharge UOTHC. 8. On 27 September 1990, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 8 months and 25 days of active service during this period. His service was characterized as UOTHC. 9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 UOTHC is normally considered appropriate. b. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. c. 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. d. 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 voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 2. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 3. His brief record of service during his last enlistment included one summary court-martial conviction and serious offenses for which court-martial charges were subsequently preferred against him. 4. Any questions he may have regarding eligibility for veterans' benefits should be directed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017999 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017999 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2