BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160004811 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: AR20160004811 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: AR20160004811 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 (UOTHC). 2. The applicant states he was not given fair representation prior to his release from active duty nor explained and read his rights. Prior to his discharge, he conducted himself in an excellent manner. He received the Army Achievement Medal. 3. The applicant provides: * three character-reference letters * 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 5 October 1982 for a period of 3 years. 3. His records show he was absent without leave (AWOL) from 5 January 1985 through 3 February 1985. 4. On 18 October 1985, court-martial charges were preferred against him for being AWOL from 4 March 1985 to 10 October 1985. 5. On 24 October 1985, nonjudicial punishment was imposed against him for possessing marijuana. 6. On 25 October 1985, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge, he was guilty of the charge(s) against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected not to make a statement in his own behalf. 7. On 13 November 1985, the separation authority approved his voluntary request for discharge and directed the issuance of a Discharge Certificate UOTHC. 8. His records also show he was AWOL from 15 November 1985 through 5 December 1985. 9. On 5 December 1985, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 5 months, and 5 days of creditable active service during this period and accrued 269 days of lost time. His service was characterized as UOTHC. 10. His DD Form 214 shows he was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, Parachutist Badge, and Army Achievement Medal. 11. There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. He provided three character-reference letters from a co-worker, friend, and employer who attest: * he was a dependable employee * he was punctual, had great customer service, and did his job well * he is reliable REFERENCES: Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. Chapter 3 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. Chapter 3 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 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. DISCUSSION: 1. The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded. 2. The evidence of record does not support the applicant's contention that he conducted himself in an excellent manner prior to his discharge. His record of service included one nonjudicial punishment for possessing marijuana and 269 days of lost time due to being AWOL. 3. His contention that he was not given fair representation relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in the court-martial and appellate processes. 4. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 5. The type of discharge directed and the reason for his discharge were in accordance with the Army policies in effect at the time of his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004811 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004811 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2