BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001340 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: 11 July 2017 DOCKET NUMBER: AR20160001340 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: 11 July 2017 DOCKET NUMBER: AR20160001340 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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC) to honorable. (He indicated in his application that he received a general discharge). 2. The applicant states he never wanted to leave the service. He was willing to accept whatever penalty he had coming to him and continue serving his time. 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. After having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 3 May 1989. 3. On 19 October 1992, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 1 August 1992 to 9 October 1992. 4. The same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. 5. Following the 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. a. 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 conditions other than honorable and furnished a Discharge Certificate UOTHC * 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 a discharge UOTHC b. He submitted a statement in his own behalf wherein he stated he was AWOL due to marital problems. He tried to resolve his marital problems and eventually turned himself in to the Military Police at Fort Dix, NJ. He apologized for letting the Army down, but he had to resolve his personal crisis and take care of his family first. He requested a general discharge so he could obtain gainful employment in the job market. 6. On 1 December 1992, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a Discharge Certificate UOTHC and reduction to the lowest enlisted grade. 7. On 19 February 1993, he was discharged UOTHC. He completed 3 years, 7 months, and 9 days of total active military service with lost time from 1 August 1992 to 8 October 1992. 8. His service records do not indicate he applied to the Army Discharge Review Board within that board's 15-year statute of limitations. 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 an UOTHC discharge is normally considered appropriate. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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. c. 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 applicant’s records show he 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 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. 2. The applicant's period of AWOL served to diminish the overall quality of his service below that meriting an honorable or a general characterization of service discharge. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate in chapter 10 separations were the period of AWOL was over 30 days. 3. 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) AR20160001340 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001340 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2