BOARD DATE: 24April 2018 DOCKET NUMBER: AR20160006459 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. 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: 24 April 2018 DOCKET NUMBER: AR20160006459 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 24 April 2018 DOCKET NUMBER: AR20160006459 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 a child when he entered the Army. His discharge was based on one incident under adverse conditions. He was a dedicated, decorated, war veteran who suffered a knee injury while in the service. 3. The applicant provides his 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 6 January 2005 at age 17. 3. Records indicate he served in Iraq from 30 October 2005 through 30 October 2006. 4. A DD Form 458 (Charge Sheet), dated 29 January 2007, shows he was charged with the following specifications under the Uniform Code of Military Justice: a. charge I, specification 1: absenting himself from his unit without authority from on or about 23 January 2007 through on or about 29 January 2007; b. charge I, specification 2: absenting himself from his unit without authority from on or about 8 January 2007 until on or about 20 January 2007; c. charge I, specification 3: failing to go at the time prescribed to his appointed place of duty without authority, to wit, 0900 hours work call formation on 18 December 2006; d. charge I, specification 4: failing to go at the time prescribed to his appointed place of duty without authority, to wit, 0600 hours accountability formation on 18 December 2006; e. charge I, specification 5: failing to go at the time prescribed to his appointed place of duty without authority, to wit, 0900 hours formation on 11 December 2006; f. charge I, specification 6: failing to go at the time prescribed to his appointed place of duty without authority, to wit, 0600 hours formation on 7 December 2006; g. charge II: making a false official statement, which he knew to be false, with the intent to deceive on or about 20 December 2006; h. charge III, specification 1: using cocaine on or between 19 November 2006 and 19 December 2006; and i. charge III, specification 2: distributing about one gram of cocaine on or about 15 December 2006. 5. On 31 January 2007, 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 (Active Duty Enlisted Administrative Separations), 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 Uniform Code of Military Justice, the possible effects of a discharge UOTHC, and the procedures and rights available to him. He submitted a statement in his own behalf wherein he apologized for the irresponsible and uneducated decisions he made since his redeployment from Iraq. He enlisted when he was 17 years old and deployed to Iraq just 2 weeks prior to his eighteenth birthday. During his year-long deployment he was on convoy security teams and was constantly on the road where he saw explosions, roadside bombs, deaths, and other horrors of war that he would not wish on anyone. He received an Army Commendation Medal for the deployment and three coins of excellence. Prior to these charges, he was never the subject of any judicial or nonjudicial punishment. He knows he made some mistakes and there are serious consequences for those mistakes, but he is not a hardened criminal or drug dealer. 6. On 1 February 2007, his immediate commander recommended approval of his request and recommended his discharge UOTHC. 7. On 8 February 2007, the officer exercising general court-martial convening authority approved his discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. The approval authority directed his reduction to the lowest enlisted grade and a discharge UOTHC. 8. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial on 22 February 2007 under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 1 month, and 17 days of active service during this period. He was awarded or authorized the Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, and Combat Action Badge. His service was characterized as UOTHC. 9. There is no evidence of record showing he injured his knee while in the Army or what bearing that might have had on his service and subsequent discharge. 10. On 15 June 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge, finding his discharge was both proper and equitable. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the 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. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. d. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. DISCUSSION: 1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10. The evidence shows he was charged with two counts of being absent from his unit, failing to go to his appointed place of duty at the time prescribed on four occasions, making a false official statement, using cocaine between 19 November 2006 and 19 December 2006, and distributing about one gram of cocaine on 15 December 2006. These offenses are punishable under the Uniform Code of Military Justice and could have resulted in a punitive discharge. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge from the Army to avoid trial by court-martial. 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 Uniform Code of Military Justice. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 3. Although the applicant was only 17 years of age at the time of his enlistment, he was over 19 years of age when he committed his offenses after completing nearly 2 years of active duty service. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their terms of military service. 4. There is no evidence of record showing he injured his knee while in the Army or what bearing that might have had on his service and subsequent discharge. 5. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. The characterization of service he received is commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006459 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006459 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2