BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160004263 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 November 2017 DOCKET NUMBER: AR20160004263 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 November 2017 DOCKET NUMBER: AR20160004263 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 to a general, under honorable conditions discharge. 2. The applicant states that since his discharge he has completed various programs on the road to recovery and in becoming a better citizen in society. 3. The applicant provides copies of four certificates and a letter in support of his request. 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 and entered active duty in the Regular Army on 9 January 1980 for a period of 3 years. Upon completion of training he was awarded military occupational specialty 19F (Tank Driver). 3. He was assigned to Company A, 1st Battalion, 63rd Armor, Fort Riley, KS, on 9 May 1980. A review of pertinent duty status records shows he was – * absent without leave (AWOL) effective 2 June 1980 * arrested by civil authorities on 3 July 1980 and charged with – * burglary * possession of burglary tools * convicted on 8 September 1980 and sentenced to 11.5 months in jail * returned to military control on 3 February 1981 4. On 11 February 1981, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for, without authority, absenting himself from his organization without leave from 2 June 1980 through 3 February 1981. 5. The applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be – * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be issued an UOTHC Discharge Certificate. d. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. e. The applicant and his counsel placed their signatures on his request for discharge. 6. The applicant's chain of command recommended approval of the applicant's request for discharge for the good of the service with an UOTHC characterization of service. 7. On 17 March 1981, the separation authority approved the applicant's request for discharge for the good of the service, reduced him to the lowest enlisted pay grade (E-1), and directed that he be furnished an UOTHC Discharge Certificate. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 9 January 1980 and he was discharged on 25 March 1981 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, based on conduct triable by court-martial with an UOTHC character of service. He had completed 6 months and 16 days of net active service during this period. It also shows, in pertinent part, in: * item 18 (Remarks): 39 days of excess leave from 13 February 1981 through 25 March 1981 * item 29 (Dates of Time Lost During This Period): 2 June 1980 through 2 February 1981 [246 days] 9. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 10. In support of his request the applicant provides the following documents. a. Four certificates that show the applicant completed the following – * iBeria Bank, Certificate of Achievement: Federal Deposit Insurance Corporation Money Smart Financial Literacy Program on 20 July 2015 * Children First, Head Start Program of Excellence Certificate: Nurturing Dads Initiative, Class Number 187, on 6 October 2015 * Family Integrity Training, Integrity Curriculum, Certificate of Completion: Handling Loss and Grief Course on 28 November 2015 * The Harvest, Certificate of Completion: Harvest House Transitional Centers Anger Management Class on 17 December 2015 b. A Harvest House Transitional Centers, Sarasota, FL, letter, dated 26 January 2016, that shows the applicant entered the program on 3 March 2015 and he attended weekly Alcoholics Anonymous/Narcotics Anonymous meetings, Addiction Education, Anger Management, and a Twelve Step Program. It also shows he completed all requirements of the program. REFERENCES: AR 635-200, in effect at the time, 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 UOTHC is normally considered appropriate. b. Chapter 3, 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. Chapter 3, 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 contends that his discharge should be upgraded because he has completed courses and programs to help him in becoming a better citizen and member of society. 2. The applicant's request for discharge UP AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. The evidence of record also shows court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL for a period of 246 days (i.e., more than 8 months). After the first 30 days of being AWOL he was arrested by civil authorities, convicted of crimes, and sentenced to jail. Upon his release from civil confinement, he returned to military control. a. He was reduced to the lowest enlisted grade (E-1) and he completed less than seven (7) months of his 3-year active duty service obligation. b. The applicant's entire chain of command recommended his service be characterized as UOTHC. c. The evidence of record shows a discharge UOTHC is normally considered appropriate for a Soldier discharged for the good of the service in lieu of trial by court-martial. 4. The applicant's post service achievements and conduct were considered. However, good post service conduct alone is not a basis for upgrading a 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) AR20160004263 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004263 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2