BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001269 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: 25 July 2017 DOCKET NUMBER: AR20160001269 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: 25 July 2017 DOCKET NUMBER: AR20160001269 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) to honorable. 2. The applicant states: a. He knows he made a mistake by receiving too much travel pay. He lost his family over this and it is all his fault. He was overpaid when he was home on leave. All he wanted to do was show his family a good time. b. He asked God for forgiveness and now he asks the Board to forgive him and give him a general discharge. c. While serving in the military, he received commendations for his work and attained the rank of E-5. d. His discharge was inequitable because it was based on one isolated incident in 60 months of service with no other adverse actions. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States). 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. Having prior service in the Pennsylvania Army National Guard from December 1976 to April 1979, the applicant enlisted in the Regular Army on 18 June 1980 for a period of 4 years. He extended his enlistment on 8 July 1981 for a period of 2 months and again on 10 September 1981 for a period of 1 month. He attained the rank of specialist five/E-5 effective 6 August 1981. On 21 June 1984, he extended his enlistment a third time for a period of 6 months. 3. On 15 February 1985, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 5 February 1985 to 12 February 1985. On 19 February 1985, he demanded trial by court-martial. 4. On 19 February 1985, a bar to reenlistment was imposed against him. 5. On 6 March 1985, charges were preferred against him for: * being AWOL from 22 December 1984 to 29 December 1984 * being AWOL from 5 February 1985 to 12 February 1985 * stealing entitlements (advance pay, advanced travel pay, travel pay, dependent travel pay, and dislocation allowance) totaling $4,140.71 * making false and fraudulent claims in the amount of $853.71 * making false and fraudulent claims in the amount of $3,287.00 * destroying public records from his finance records 6. On 18 March 1985, 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 22 March 1985, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. 8. On 1 April 1985, 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 5 years, 3 months, and 9 days of creditable active service with 13 days of lost time. His service was characterized as UOTHC. 9. On 10 April 1987, the Army Discharge Review Board denied his request for a general discharge. 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. 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. 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 record of service included one nonjudicial punishment, a bar to reenlistment, numerous serious offenses for which court-martial charges were subsequently preferred against him, and 13 days of lost 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) AR20160001269 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001269 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2