BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160005421 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: 3 August 2017 DOCKET NUMBER: AR20160005421 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: 3 August 2017 DOCKET NUMBER: AR20160005421 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 discharge to fully honorable. 2. The applicant states he took a hit to his head in a Bradley Fighting Vehicle rollover on 12 September 1996. He recently had surgery on 7 December 2015 to fix his neck and head. He can see clearly now. He finds it "very hard to swallow for the way he was discharged." He could not believe it, but his DD Form 214 (Certificate of Release or Discharge from Active Duty) proves it. He feels he should not have been let go because of his injury and feels let down. 3. The applicant provides: * 1998 DD Form 214 * 2005 letter from the Mississippi Army National Guard (MSARNG) * 2015 Discharge-Patient Medication Report from Garden Park Medical Center 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 14 August 1990 and he held military occupational specialty 11M (Fighting Vehicle Infantryman). He served in Korea from December 1990 to November 1991. 3. He reenlisted in the Regular Army on 5 March 1994 and on 25 September 1996. He was promoted to staff sergeant/pay grade E-6 on 1 June 1997. 4. On 5 March 1996, he was reprimanded by the Assistant Division Commander, 1st Cavalry Division, Fort Hood, TX, for driving under the influence of intoxicating liquor on 19 February 1996. 5. On 3 June 1998, he departed his Fort Hood unit in an absent without leave (AWOL) status and on 3 July 1998, he was dropped from the rolls as a deserter. He surrendered to military authorities on 15 July 1998 (shown as 7 July 1998 on the DD Form 616 (Report of Return of Absentee)). 6. On 21 July 1998, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 3 June 1998 to on or about 15 July 1998. 7. On 23 July 1998, the applicant consulted with legal counsel and 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 (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 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 the applicant indicated: a. he was making this request of his own free will and he had not been subjected to any coercion by any person, and he had been advised of the implications that are attached to his request; b. he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge; c. he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws; d. he stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service"; and e. he elected not to submit a statement on his own behalf and declined a physical evaluation prior to separation. 8. On 28 September 1998, the applicant's immediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge. The immediate commander indicated the applicant had become disillusioned with the military and his retention was not in the best interests of the Army. 9. On 6 October 1998, following a legal review and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 21 October 1998. 10. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service – in lieu of trial by court-martial with an under other than honorable conditions discharge. This form further confirms he completed a total of 8 years and 26 days of active military service. He had lost time from 3 June to 14 July 1998. It also shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the: * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Noncommissioned Officer's Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Item 18 (Remarks) states, in part, "Continuous Honorable Active Service 19900320 - 19940304" 11. On 13 October 2000, the Army Discharge Review Board (ADRB) reviewed his petition for an upgrade of his discharge. The ADRB determined his discharge was proper and equitable and voted to deny relief. 12. He provides: a. A letter, dated 17 February 2005, from the MSARNG, indicating the applicant had complained of back pain and he was not to perform the standard Army Physical Fitness Test. b. Discharge-Patient Medication Report, indicating he was cared for at Garden Park Medical Center, for a wound or incision following what appears to be neck surgery. REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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 is normally considered appropriate. b. Paragraph 3-7a states 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 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 record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 3. It is possible that the applicant may have sustained an injury on 12 September 1996. However, there is no evidence in his service record to support his contentions. While he provided evidence he had surgery in 2015, the hospital discharge paperwork does not state why he required surgery. 4. The applicant, a noncommissioned officer, received a written memorandum from a general officer for driving under the influence of alcohol in March 1996. Two years later and for unknown reasons the applicant departed his unit in an AWOL status. He eventually returned to military control. 5. Based on his record of indiscipline, the separation authority determined that his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is no evidence of error in the separation authority's determination that his service did not rise to the level required for a general or an honorable 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) AR20160005421 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005421 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2