BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150018005 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: 11 May 2017 DOCKET NUMBER: AR20150018005 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: 11 May 2017 DOCKET NUMBER: AR20150018005 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. He states that in April 1995 he was forced to reenlist while assigned to Battery A, 7th Battalion, 8th Field Artillery, Fort Shafter, HI. His unit had a high reenlistment rate and his first sergeant (1SG) threatened him with extra duty if he did not reenlist. After reenlisting, he was reassigned to Fort Hood, TX. His car had not been shipped and he became very depressed. He did not want to be there. The 1SG gave him permission to go to back to Hawaii for the purpose of shipping his car. He contends that he called back to Fort Hood, TX, and told them that he would not be returning because he had not totally agreed to reenlist. He is currently homeless and staying at the Institute for Human Services. An upgrade to his discharge would be helpful in his search for employment and help him have a better future for his family. 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 31 July 1994. On 31 August 1994, he reenlisted for a period of 4 years and he received a Selective Reenlistment Bonus (SRB) based on his primary military occupational specialty of 13B (Cannon Crewmember). 3. His record contains two DD Forms 616 (Report of Return of Absentee) which show the applicant departed absent without leave (AWOL): a. on 10 April 1995, from Fort Hood, TX, and he was apprehended by civil authorities in Honolulu, HI, on 1 August 2005; and b. on 3 August 2005, and surrendered to military authorities on 13 November 2006. 4. On 21 November 2006, court-martial charges were preferred against him for the AWOL periods listed in paragraph 3 above. 5. On 22 November 2006, after being counseled by his defense counsel, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of a trial by court-martial. In his request for a discharge, he acknowledged: a. He was making the request of his own free will and had not been subjected to any coercion whatsoever by any person, he understood by submitting the request 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 stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service. b. Prior to completing the request, he had consulted with counsel who had fully advised him of his rights under the Uniform Code of Military Justice (UCMJ), the elements of the offenses with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which were available at the time, and the maximum punishment. Although, counsel furnished him legal advice, the decision was his own. c. He understood if his request was approved he could be discharged under other than honorable conditions. He had been advised of the possible effects of an under other than honorable conditions discharge and that he may be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 6. On 29 January 2007, the separation authority approved the applicant's request for discharge in lieu of court-martial and directed his service be characterized as under other than honorable conditions. On 22 February 2007, he was discharged accordingly. 7. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in the rank of PV1 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions. 8. On 22 October 2008, the Army Discharge Review Board denied his request for an upgrade of his discharge. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge normally was furnished an individual who was discharged for the good of the Service. b. 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. c. 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. He subsequently requested a discharge in lieu of a trial by court-martial. In his request, he admitted he was guilty of the charges against him, that he was making the request of his own free will, and he had been fully advised by his legal counsel of his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 2. The applicant contends he was forced to reenlist. There is no evidence to support this contention. Given his extensive period of AWOL, the applicant's service did not rise to the level required for an honorable or a general 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) AR20150018005 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018005 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2