BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001331 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: 3 August 2017 DOCKET NUMBER: AR20160001331 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: 3 August 2017 DOCKET NUMBER: AR20160001331 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 to general under honorable conditions. 2. The applicant states he was at Fort Hood, Texas waiting to be processed and he became angry and left the installation. He turned himself in at Fort Lewis, Washington. He was sent to Fort Sill, Oklahoma and remained there for 7-10 days until he was discharged. 3. The applicant provides three character reference letters addressed to the Department of Veterans Affairs (VA). 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 (RA) on 15 February 1995. He was over 21 years of age at the time. 3. On 18 August 1995, court-martial charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for one specification of being absent without leave (AWOL) for the period 8 June to 14 August 1995. 4. On 21 August 1995, 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 under other than honorable conditions * 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 under other than honorable conditions statements in his own behalf were not submitted with his request 6. On 11 December 1995, 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 under other than honorable conditions. 7. On 8 January 1996, 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 under other than honorable conditions. He completed 7 months and 17 days of creditable active service and accrued lost time for the period 8 June to 12 September 1995. 8. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 9. The applicant provides three character reference letters. The letters state the applicant was in an automobile accident in 1996 which left him paralyzed below the chest. After the accident, the applicant remained a hard worker and was able to earn a Bachelor's Degree while working full-time in addition to assisting when possible on a family farm. Each acknowledges the applicant's positive attitude and pride in being independent despite his physical challenges. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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 under other than honorable conditions discharge was normally considered appropriate. b. 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. c. 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. DISCUSSION: 1. His records show he enlisted in the RA at 21 years of age. He was 21 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. He provides letters of reference which claim an undocumented accident and medical condition in 1996. Post-service events in and of themselves are not normally a basis for an upgrade of a discharge. 4. 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// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001331 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001331 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2