BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160003549 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: 15 August 2017 DOCKET NUMBER: AR20160003549 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: 15 August 2017 DOCKET NUMBER: AR20160003549 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 to a general discharge. 2. The applicant states after two deaths in his family and after his request to transfer (to be closer to home and care for his mother) was denied, he felt obligated to overextend an approved leave. He requests the upgrade based on his service record prior to committing the error which led to his discharge. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 1 August 1986 and he held military occupational specialty 11B (Infantryman). He was assigned to the 4th Battalion, 22nd Infantry, 25th Infantry Division, Schofield Barracks, HI. 3. On 23 January 1987, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice failing to go at the time prescribed to his appointed place of duty and for being drunk on duty. 4. On 19 June 1987, he departed his unit on ordinary leave; however, he did not return. On 7 July 1987, his unit reported him in an absent without leave (AWOL) status and on 6 August 1987, he was dropped from the rolls as a deserter. 5. On 23 November 1987, his commander submitted a DD Form 458 (Charge Sheet) charging the applicant for being AWOL from on or about 7 July 1987 to an unknown date. 6. He was apprehended by civil authorities in Levelland, TX, on 20 November 1999. He was transferred to military control and transported to the Personnel Control Facility, Fort Sill, OK. 7. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, his record contains a DD Form 214 showing he was discharged on 28 April 2000 under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) in lieu of court-martial, with service characterized as under other than honorable conditions. His DD Form 214 also shows: * he completed 1 year, 2 months, and 9 days of active service * he had lost time from 7 July 1987 to 19 November 1999 * he was awarded or authorized the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar 8. Chapter 10 of AR 635-200 provides that the applicant must have indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. He must have acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation. REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states 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. 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. DISCUSSION: 1. The applicant’s record is void of the complete facts and circumstances that led to his voluntary discharge. However, his record contains a DD Form 214 that shows he was discharged on 28 April 2000 under the provisions of chapter 10 of AR 635-200, in lieu of trial by court-martial. 2. The issuance of a discharge under the provisions of chapter 10, AR 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial. 3. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. 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) AR20160003549 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003549 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2