IN THE CASE OF: BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160005555 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 IN THE CASE OF: BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160005555 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. IN THE CASE OF: BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160005555 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 was a good Soldier, but he was forced to choose between his family and the Army. Although his family could be with him in Alaska, his wife did not want to move there. He was having a hard time staying focused without his family. He was absent without leave (AWOL) because he was told he could not be reassigned stateside to be with his wife and sons. Now he regrets his decision. He needs the veterans' benefits. 3. The applicant provides no additional evidence. 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. On 25 November 1992, he enlisted in the Regular Army for a period of 4 years. 3. Headquarters, U.S. Army Infantry Center, Fort Benning, GA, Orders 223-149, dated 11 August 1993, assigned him to the Adjutant General Replacement Detachment, Fort Richardson, AK, pending unit assignment. He was authorized movement of his dependents and household goods. 4. On 20 August 1993, he was assigned to Headquarters and Headquarters Company, 5th Battalion, 9th Infantry Regiment, Fort Wainwright, AK, later redesignated as Company B, 1st Battalion, 17th Infantry Regiment, 6th Infantry Division (Light), Fort Wainwright, AK. 5. On 4 November 1993, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for using disrespectful language toward a noncommissioned officer. 6. A DD Form 458 (Charge Sheet), dated 1 April 1994, shows court-martial charges were preferred against him for being AWOL from 17 February 1994 through on or about 29 March 1994. 7. On 1 April 1994, he 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 consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and the procedures and rights available to him. He did not submit statements in his own behalf. 8. Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, KY, Orders 45-1, dated 4 April 1994, show he surrendered to military authorities at Fort Benjamin Harrison, IN, and was reassigned to the Special Processing Company, U.S. Army Personnel Control Facility, U.S. Armor Center and Fort Knox, KY, effective 29 March 1994. 9. On 14 April 1994, the applicant's immediate commander recommended approval of his request. He indicated the applicant's conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on his prior record, punishment could be expected to have a minimal rehabilitative effect and he believed discharge to be in the best interests of all concerned. 10. On 9 May 1994, the officer exercising general court-martial convening authority approved his discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a discharge UOTHC. 11. His DD Form 214 shows he was discharged in lieu of trial by court-martial on 23 May 1994 under the authority of Army Regulation 635-200, chapter 10. He completed 1 year, 4 months, and 19 days of active service during this period with 40 days of lost time. His service was characterized as UOTHC. 12. There is no evidence indicating he applied to the Army Discharge Review Board 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. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized sentence 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. 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. 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 geographic separation from his family and denial of his request for a stateside reassignment were the causative factors for his being AWOL. 2. The evidence of record shows he was authorized movement of his dependents and household goods. 3. His records show he was AWOL from 17 February 1994 through on or about 29 March 1994, an offense punishable under the UCMJ with a punitive discharge. 4. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 5. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. The characterization of service he received was commensurate with the reason 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) AR20160005555 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005555 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2