BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160003882 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: 21 September 2017 DOCKET NUMBER: AR20160003882 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: 21 September 2017 DOCKET NUMBER: AR20160003882 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 (UOTHC) discharge. 2. The applicant states his first sergeant (1SG) gave him permission to take leave to take care of personal business. He was late returning and considered absent without leave (AWOL), but he turned himself in at Fort Polk, LA. There was no malicious intent. 3. The applicant provides copies of: * DA Form 2-1 (Personnel Qualification Record – Part II), prepared on 27 January 1989 * DD Form 458 (Charge Sheet), dated 5 February 1992 * Orders 115-31, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 24 April 1992 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 May 1992 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. Following prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 26 January 1989. 3. He was promoted to the rank/grade of specialist four (SPC)/E-4 on 1 November 1990. 4. A DA Form 4187 (Personnel Action), dated 22 November 1991, shows while the applicant was assigned to the 704th Support Battalion, Fort Carson, CO, his duty status was changed from present for duty to AWOL effective 22 November 1991. 5. A DA Form 4187, dated 22 December 1991, shows the applicant's duty status was changed from AWOL to dropped from the rolls of the Army effective 22 December 1991. 6. A DD Form 458 shows court-martial charges were preferred against the applicant on 5 February 1992, for being AWOL from on or about 22 November 1991 to a date to be determined. 7. A DD Form 616 (Report of Return of Absentee), dated 12 March 1992, shows the applicant surrendered to military authorities at Fort Polk, LA on or about 11 March 1992. He was assigned to Battery B, Personnel and Support Battalion, U.S. Army Field Artillery Center, Fort Sill, OK. 8. The applicant's discharge packet is not available for review; however, his record contains a duly-constituted DD Form 214 that shows he was discharged on 8 May 1992, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in the rank/grade of private (PV1)/E-1. His DD Form 214 further shows he had lost time from 22 November 1991 through 11 March 1992, he was discharged in lieu of trial by court-martial, with service characterized as UOTHC. 9. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge 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. 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. b. 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. c. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. The service of Soldiers separated under this authority would normally be characterized as UOTHC. DISCUSSION: 1. The applicant's record is void of the specific facts and circumstances surrounding his discharge. However, his record does show he was AWOL from on or about 22 November 1991 to 11 March 1992, until he surrendered to military authorities. It appears he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, after which he was discharged under the provisions of Army Regulation 635-200, chapter 10. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service during his enlistment. The characterization of service he received was commensurate with the authority 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) AR20150015632 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003882 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2