IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160003593 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 IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160003593 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. IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160003593 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 discharge under other than honorable conditions to an honorable or a general discharge. 2. The applicant states his actions were not like him and it has been agonizing for him. 3. The applicant provides: * Honorable Discharge Certificate, dated 4 December 1996 * Headquarters and Headquarters Company, 3rd Brigade, 24th Infantry Division (Mechanized) Letter, dated 12 December 1994 * DA Form 1059 (Service School Academic Evaluation Report), dated 18 April 1997 * Operation Vigilant Warrior Certificate of Achievement * Operation Vigilant Warrior Certificate of Service * Bradley Fighting Vehicle Infantryman Course Certificate of Training * 2nd Battalion, 11th Infantry Regiment Certificate of Achievement * 3rd Brigade, 24th Infantry Division (M), Desert Hammer VII Certificate of Achievement * Combat Lifesaver Certificate of Training * 11B Fast Track Program Certificate of Achievement * Noncommissioned Officer Evaluation Report (NCOER), dated December 1997 * Memorandum for Record, dated 10 March 1997 * Army Commendation Medal Certificate, dated 3 October 1997 * Army Achievement Medal Certificate, dated 1 May 1997 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 December 1998 * Permanent Orders Number 92-7, dated 2 April 1997 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) for 3 years on 10 March 1994. He completed training as a mechanized infantryman. He reenlisted in the RA for 5 years on 5 December 1996. 3. While assigned to Korea, the applicant went into an absent without leave (AWOL) status on 31 January 1998 and he remained absent in a desertion status until he surrendered to military authorities and was returned to military control at the Personnel Control Facility on 22 July 1998. 4. On 24 July 1998, the applicant was notified charges were pending against him for the above period of AWOL. He acknowledged receipt of the notification and consulted with legal counsel. 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, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights available to him. Following consultation with counsel, he submitted a request for discharge under the provisions of Army Regulation 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, he elected not to submit a statement in his own behalf and he acknowledged he understood the following: a. If his request for discharge was accepted, he could be issued a discharge under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge. b. He could be ineligible for many or all benefits administered by the Department of Veterans Affairs. c. He could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions. 5. His separation processing documents show on 14 October 1998, the applicant’s commander indicated, at the time, he had completed 4 years, 2 months, and 17 days of total creditable service and he had lost time from 31 January to22 July 1998. 6. The separation authority approved his request for discharge on 4 November 1998 and directed the issuance of a discharge under other than honorable conditions and reduction to the lowest enlisted grade. 7. On 7 December 1998, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. His service was characterized as under other than honorable conditions. His DD Form 214 is not available for review. 8. A review of the available records does not show the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge. 9. The applicant provides copies of certificates of achievement, training, and commendation he received while he was in the Army. He also provides a copy of an NCOER and a DA Form 1059 describing his service and achievements while he was on active duty. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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 records show he had charges pending against him for being AWOL from 31 January to 22 July 1998. 2. He submitted a request for discharge for the good of the service in lieu of trial by court-martial. The appropriate authority directed the issuance of a discharge under other than honorable conditions. There is no evidence of error or injustice in the characterization of service he received. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003593 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003593 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2