BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160002964 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: 22 August 2017 DOCKET NUMBER: AR20160002964 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: 22 August 2017 DOCKET NUMBER: AR20160002964 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 under other than honorable conditions discharge. 2. The applicant states he was told he could have it upgraded after 2 years. 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 3 February 1987 and he held military occupational specialty 13B (Cannon Crewmember). He served in Germany from 29 May 1987 to 1 March 1989. 3. The applicant's service records do not contain a DD Form 458 (Charge Sheet). However, it appears court-martial charges were preferred against the applicant for violating the Uniform Code of Military Justice (UCMJ). 4. On 14 January 1989, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge and the maximum permissible punishment authorized under the UCMJ for violating: * Article 86 by being absent or failing to go to his appointed place of duty at the time prescribed * Article 90 by assaulting or willfully disobeying a commissioned officer * Article 91 by insubordinate conduct * Article 134 (general article) 5. He was further advised of the possible effects of a request for discharge and of the procedures, and rights that were available to him 6. Following consultation with legal counsel, the applicant requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge the applicant indicated: a. he was making this request of his own free will and he had not been subjected to any coercion by any person; b. he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge; c. he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; d. under no circumstances did he desire further rehabilitation for he had no desire to perform further military service; and e. he would not submit a statement on his own behalf. 6. On 14 February 1989, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 1 March 1989. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge. This form further confirms he completed a total of 2 years and 29 days of creditable active military service. He was awarded or authorized the: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Grenade Bar 8. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a states 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 states 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 record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. He 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 his rights were fully protected throughout the separation process. The separation authority determined the applicant's service did not rise to the level required for a general or an honorable discharge. The characterization of service he received was commensurate with the reason for discharge. 3. The Army does not have nor has it ever had a policy under which a characterization of service may be upgraded solely due to the passage of 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) AR20160002964 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002964 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2