BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20160005335 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: 5 December 2017 DOCKET NUMBER: AR20160005335 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: 5 December 2017 DOCKET NUMBER: AR20160005335 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) to honorable. 2. The applicant states he feels his discharge was just; however, he has been labeled as a Soldier not fit for benefits for more than 20 years. He served this country while putting his life in harm's way. He requests an upgrade of his discharge to honorable so he may receive full veterans' benefits. 3. The applicant provides correspondence from a Member of Congress, dated 28 November 2016. 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. Having prior enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 18 April 1980 for a period of 3 years. 3. On 14 April 1983, he was honorably released from active duty and transferred to a U.S. Army Reserve troop program unit. He was promoted to staff sergeant effective 23 November 1985. 4. On 11 August 1986, he was ordered to active duty in an Active Guard Reserve status as a member of the U.S. Army Reserve. 5. On 18 August 1992, court-martial charges were preferred against him for the following offenses: * failing to go at the time prescribed to his appointed place of duty (12 specifications) * absenting himself from his unit from 13 September 1991 to 14 September 1991 * absenting himself from his unit from 11 May 1992 to 12 May 1992 * absenting himself from his unit from 15 May 1992 to 18 May 1992 * disobeying a lawful order from a superior commissioned officer * being derelict in the performance of his duties * wrongfully using cocaine (three specifications) * assaulting a civilian * assaulting a child under the age of 16 years (two specifications) * writing bad checks (three specifications) * absenting himself from his place of duty (annual training) from 1 August 1992 to 18 August 1992 * missing a unit movement through design 6. A trial by special court-martial was recommended. 7. On 28 August 1992, 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 Department of Veterans Affairs, 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. 8. On 1 September 1992, the separation authority approved his voluntary request for discharge and directed the issuance of a Discharge Certificate UOTHC. 9. On 30 September 1992, 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 9 years, 4 months, and 28 days of creditable active service and he accrued 21 days of lost time. His service was characterized as UOTHC. 10. 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. REFERENCES: Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. 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. 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. Although the applicant contends he has been labeled as a Soldier not fit for benefits for more than 20 years, the passage of time is normally not a basis for upgrading a discharge. Each request is individually considered based on the evidence presented. 2. He was charged with 28 violations of the Uniform Code of Military Justice. 3. 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. 4. 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. 5. Any questions he may have regarding veterans' benefits should be directed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005335 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005335 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2