IN THE CASE OF: BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160007896 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: 5 June 2018 DOCKET NUMBER: AR20160007896 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 (UOTHC) discharge to a general, under honorable conditions discharge (GD). 2. The applicant states, in effect: a. He has health issues related to his service and his character of service is not favorable for Department of Veterans Affairs purposes. He believes he was unfairly treated while stationed at Fort Bragg, NC. He was subjected to racial profiling by his platoon sergeant and his running profile was ignored. b. While he was deployed, his first sergeant received letters about his wife mistreating his children. He return from deployment early and took his children to his mother's house. His ex-wife eventually took the children back. His platoon sergeant showed a lack of concern for his situation. c. He went to the doctor and was given medication and placed on bedrest for three days. He continued to have issues with his platoon sergeant. He was not given permission to go to court and he decided to go court anyway. After being gone long enough to settle his children he turned himself in. 3. The applicant provides: * medical documents * self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * two letters of support 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 24 May 1993. 3. On 5 August 1999, charges were preferred against him for being absent without leave (AWOL) from on or about 16 December 1996 to on or about 31 July 1999. 4. On 5 August 1999, 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. 5. In his voluntary request for discharge, he indicated: * he was making the request of his own free will and had not been subjected to coercion whatsoever by any person * he had been advised of and understood the elements of the offenses charged and acknowledged he was guilty of at least one of the charges against him * he did not desire further rehabilitation and had no desire to perform further military service * he had been afforded the opportunity to consult with appointed counsel * he understood if he received a UOTHC discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life * he understood there was neither automatic upgrading nor review by any Government agency of less than honorable discharge and he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished a review of his discharge * he elected not to provide a statement on his behalf 6. On 29 May 2000, an authorized official approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of a UOTHC discharge and reduction to the lowest enlisted grade. He was discharged accordingly on 18 September 2000. 7. There is no evidence in the available records which shows he sought assistance from his chain of command issues involving the care of his children, or that he notified his chain of command his being AWOL was a result of these issues. 8. There is no indication the applicant 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 the separation of enlisted personnel. It provides: a. 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 at any time after the charges have been preferred. An under other than honorable conditions discharge is normally considered appropriate. b. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. 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 states he has health issues related to his service and his character of service is not favorable for VA purposes and requests his discharge be upgrade so he may be able to take of VA programs; however, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans benefits. 2. The applicant contends he was having problems with the care of his children; however, there is no evidence in the available records which shows he sought assistance from his chain of command for issues involving the care his children, or that he notified his chain of command his being AWOL was a result of these issues. 3. He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 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. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 4. His separation was in compliance with applicable regulations; there is no indication of procedural or administrative errors which would have jeopardized his rights. The characterization of his service was commensurate with the reason for his discharge. 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) AR20160007896 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007896 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2