BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160001325 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: AR20160001325 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: AR20160001325 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 to his under other than honorable conditions (UOTHC) characterization of service to a general. 2. The applicant states that in order to enlist in the Army his recruiter told him to make false statements that his girlfriend had custody and was living with his parents. After graduating from basic training in July 2008, his girlfriend, while visiting him off post, decided she did not want him to be in the military, so she left their son with him. He contacted his chain of command about his situation and was placed on 5 days of emergency leave. He tried to set up plans with several family member, but was unable to find a place for his son to stay. He stayed in constant communication with his unit, but received little to no help from his commanding officer during his leave. He felt his command put him in a position to choose between his son and the military. He called his unit and told them he was not coming back and they knew where to find him. He was apprehended by a local department and upon release he purchased a bus ticket and turned himself in to the military police in Fort Knox, KY. His AWOL status had nothing to do with the fact that his unit deployed. He is requesting an upgrade because he was completely in the dark about how to implement a family care plan. 3. The applicant provides no additional documents in support of his application. 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 U.S. Army Reserve (USAR) on 17 October 2007. He was ordered to active duty on 29 May 2008 to attend basic combat training and advance inidividual training. 3. On 13 July 2008, the applicant’s duty status changed from present for duty to AWOL. 4. On 12 August 2008, the applicant was dropped from the unit rolls. 5. On 13 March 2009, the applicant was apprehended by civilian authorities in Johnson City, TN, and returned to military control on the same day. 6. On 9 April 2009, the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, preferred court-martial charges against him for one specification of being AWOL from 13 July 2008 to 13 March 2009. 7. On the same day, 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 Uniform Code of Military Justice (UCMJ), of the possible effects of a discharge under less than honorable conditions, and of the procedures and rights available to him. 8. 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 that: * 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 under conditions other than honorable and furnished an UOTHC Certificate * he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * 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 an UOTHC discharge 9. On 27 April 2009, his intermediate commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge. In his endorsement the commander stated that based on his previous record, punishment can be expected to have minimal rehabilitative effect. He further stated that he believed a discharge would be in the best interest for all concerned. 10. On 18 May 2009, the separation authority approved the applicant's request and directed that he receive an UOTHC discharge and be reduced to the lowest enlisted grade, if applicable. 11. On 20 May 2009, the applicant was assigned to the U.S. Army Transition Center, Fort Knox, KY. 12. On 28 May 2009, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, with service characterized as UOTHC. The applicant was issued a DD 214, which shows he completed 4 months of creditable active service and had 243 days of lost time. His DD Form 214 also shows in: * Item 24 (Character of Service), UOTHC * Item 26 (Separation Code), KFS * Item 27 (Reentry Code), 4 * Item 28 (Narrative Reason), In Lieu of Trial By Court-Martial 13. On 13 July 2009, the applicant petitioned the Army Board for Correction of Military Records (ABCMR) and requested a change to his reentry (RE) code shown on his DD Form 214. The ABCMR convened a board to consider his request on 2 February 2010. On 4 February 2010, the ABCMR sent the applicant a letter informing him that his request was denied. 14. On 22 December 2010, the applicant petitioned the ABCMR and again requested a change to his RE code. On 29 July 20011, the ABCMR sent the applicant a letter to inform him that they had reviewed his original request and his request for reconsideration. The ABCMR determined that the applicant did not provide new evidence and/or argument. His request for reconsideration was returned without action. 15. On 27 February 2015, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged. As such, his request for an upgrade was denied. REFERENCES: 1. 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 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.  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. d. 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: The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 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 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) AR20160001325 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001325 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2