BOARD DATE: 27 June 2017 DOCKET NUMBER: AR20160000831 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: 27 June 2017 DOCKET NUMBER: AR20160000831 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: 27 June 2017 DOCKET NUMBER: AR20160000831 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. 2. The applicant states he did not want to get out of the military. He wanted to be stationed closer to home because of his wife’s pregnancy. 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 12 June 1992. He completed training and was awarded military occupational specialty 77F (Petroleum Supply Specialist). 3.  On 8 April 1995, he was reported as absent without leave (AWOL) from his assigned unit. 4.  On 1 June 1995, he returned to military control at Fort Sill, OK, and was assigned to the Personnel Control Facility, Fort Sill. 5.  On 7 June 1995, court-martial charges were preferred against him for being AWOL from 8 April to 1 June 1995. 6.  On 8 June 1995, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights 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. 7.  In his request for discharge, he acknowledged he was submitting the request of his own free will and had not been subjected to any coercion, that he was guilty of the charges against him, and that under no circumstances did he desire further rehabilitation or to perform further military service. He further acknowledged he understood that if the request were approved he might be discharged under other than honorable conditions. He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. He declined to submit a statement on his own behalf. 8.  On 9 June 1995, he was placed on excess leave pending the results of his request for a chapter 10 discharge. 9.  On 16 August 1995, his immediate commander recommended approval of his request with characterization of his service as under other than honorable conditions. 10.  On 21 August 1995, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, with his service characterized as under other than honorable conditions and directed his reduction to private/pay grade E-1. On 8 September 1995, he was discharged accordingly. 11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. He completed 3 years, 1 month, and 2 days of net active service of which 91 days were excess leave and he accrued 54 days of lost time due to being AWOL. His service was characterized as under other than honorable conditions. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 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 included 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. A discharge under other than honorable conditions 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are discharges in lieu of trial by court-martial. 2. The applicant's discharge under the provisions of AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and his rights were fully protected throughout the separation process. The characterization of his service was commensurate with the reason for his 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) AR20160000831 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000831 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2