BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160000710 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: 15 June 2017 DOCKET NUMBER: AR20160000710 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: 15 June 2017 DOCKET NUMBER: AR20160000710 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 the characterization of his service from under other than honorable conditions (UOTHC) to general under honorable conditions. 2. The applicant states he was wrong for being absent without leave (AWOL). He was going through a bad divorce and he was fighting for custody of his children in a court of law. He received permanent change of station orders to Germany; however, 6 months was not enough time to deal with his divorce and fight for his children. He was young and not thinking straight. His UOTHC characterization of service has prevented him from qualifying for positions in law enforcement. He is proud of his time in the U.S. Army and he had no other negative actions throughout his service, but his mistake has negatively impacted his future in ways he could not have imagined. He does not intend to access any other veterans' benefits. 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 17 May 1995 at just over 22 years of age. 3. On 6 June 2000, court-martial charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for one specification of being AWOL for the period 11 April to 5 June 2000. 4. On 6 June 2000, the applicant consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him. 5. Following consultation with legal counsel, he 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. In his request for discharge, 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 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 understood he could be discharged UOTHC and furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a discharge[UAu1] UOTHC 6. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial. The separation authority directed the issuance of a discharge UOTHC and reduction to the lowest enlisted grade, if applicable. 7. On 28 September 2001, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as UOTHC. He completed 6 years, 2 months, and 17 days of creditable active service and accrued lost time for the period 11 April to 4 June 2000. 8. On 28 January 2004, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.[UAu2] REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally considered appropriate. b. Paragraph 3-7a states 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. Paragraph 3-7b states 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. d. Paragraph 3-7c states that 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. DISCUSSION: 1. His records show he enlisted in the Regular Army at 22 years of age. He was 26 years of age at the time he was AWOL. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. 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 Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 3. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The characterization of service he received is commensurate with the reason for his discharge. //NOTHING FOLLOWS// [UAu1]I deleted and changed paragraph 4 and 5 for clarity and correctness. [UAu2]I deleted this paragraph added para. 9. I put it back in the ROP, but recommend deleting it and just keeping para. 9. I would also remove the ADRB case report and directives from the documents being submitted to our board members. ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000710 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000710 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2