IN THE CASE OF: BOARD DATE: 22 May 2018 DOCKET NUMBER: AR20160007881 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 IN THE CASE OF: BOARD DATE: 22 May 2018 DOCKET NUMBER: AR20160007881 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 a general, under honorable conditions discharge. 2. The applicant states his discharge was inequitable because it was based on one isolated incident in 2 years, 7 months, and 7 days of service, with no other adverse action. 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, and 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 (RA) on 28 January 1975. He held military occupational specialty (MOS) 76Y (Unit Supply Specialist). 3. He was honorably released from active duty on 27 January 1978 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligations. His DD Form 214 (Report of Separation from Active Duty) for this period of service credited him with 3 years of active service. 4. He again enlisted in the RA on 6 March 1979. He completed one station unit training and he was awarded MOS 95B (Military Police (MP)). He was subsequently assigned to the 5th MP Company, Fort Polk, LA. 5. On 15 January 1980, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty on 11 January 1980. 6. On 3 June 1980, he again accepted NJP under the provisions of Article 15 of the UCMJ for leaving his appointed place of duty without authority. 7. On 18 June 1981, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him, citing his continued misconduct, inability to adjust to the performance of his assigned tasks, being a rehabilitation failure, and showing himself unsuitable for military service. The applicant was furnished with a copy of the bar but he elected not to submit a statement in his own behalf. The approval authority approved the bar. 8. On 26 August 1981, the applicant departed his unit in an absent without leave (AWOL) status, and on 24 September 1981, he was dropped from the rolls as a deserter. He surrendered to military authorities at Fort Hamilton, NY, on 21 May 1982. 9. On 24 May 1982, court-martial charges were preferred against him for one specification of AWOL from 26 August 1981 to 21 May 1982. 10. On 28 May 1982, the applicant consulted with legal counsel, who advised him of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights 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, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * 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 discharge or a dishonorable discharge * he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * under no circumstances did he desire further rehabilitation and he had no desire to perform further military service * he elected not to submit a statement in his own behalf 11. His intermediate commander recommended approval with the issuance of an under other than honorable conditions discharge. 12. On 4 June 1982, 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, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade, if applicable. On 7 July 1982, the applicant was discharged accordingly. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. This form shows he completed 2 years, 7 months, 7 days of creditable active service during the period under review. He also had 268 days of lost time. He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar and Army Service Ribbon. 14. There is no indication in his records that he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCE: AR 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 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 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's record shows he was charged with the commission of an offense 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. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 2. 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. The separation authority determined this misconduct rendered his service unsatisfactory and that his service during his final enlistment did not rise to the level required for a general or an honorable characterization. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007881 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007881 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2