BOARD DATE: 30 January 2018 DOCKET NUMBER: AR20160008212 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: 30 January 2018 DOCKET NUMBER: AR20160008212 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: 30 January 2018 DOCKET NUMBER: AR20160008212 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 general under honorable conditions. 2. The applicant states his discharge UOTHC was too severe. Prior to this indiscretion, he was a stellar Soldier who took great pride in his duties. During his service, he bettered himself by earning his high school diploma. He believes the bad decision he made should not hinder his service record. He asks the board to consider upgrading his discharge to general. 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. The applicant enlisted in the Regular Army on 31 August 1976. 3. His records contain three DA Forms 4187 (Personnel Action) document the following personnel actions: * 6 September 1978, showing his duty status changed from present for duty to absent without leave (AWOL) effective 5 September 1978 * 5 October 1978, showing his duty status changed from AWOL to dropped from the rolls (DFR) effective 4 October 1978 * 28 March 1979, showing he surrendered to military control at Fort Campbell, KY, effective 9 January 1979 4. His records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 15 March 1979, showing his records were flagged due to a pending special court-martial charge pertaining to his AWOL from 5 September 1978 to 9 January 1979. 5. His records contain two DA Forms 4187, dated: * 3 April 1979, showing his duty status changed from present for duty to AWOL on 2 April 1979 * 5 April 1979, showing his duty status changed from AWOL to DFR on 3 April 1979 6. On 5 October 1979, a court-martial charge was preferred against him for the AWOL period 5 September 1978 to 9 January 1979. 7. His records contain a DA Form 4187, dated 23 January 1986, showing he was apprehended by civilian authorities and returned to military control on 20 January 1986 and changing his duty status from DFR to present for duty. 8. On 23 January 1986, court-martial charges were preferred against him for the AWOL periods 5 September 1978 to 9 January 1979 and 2 April 1979 to 20 January 1986. 9. On 23 January 1986 after consulting with counsel, 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 acknowledged his guilt and that: * he understood he could be discharged UOTHC * as a result of such a discharge, he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge * he did not elect to submit a statement in his own behalf 10. On 29 January 1986, his company commander recommended approval of his request for discharge for the good of the service and further recommended his discharge UOTHC. 11. On 5 February 1986, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed characterization of his service as UOTHC and his reduction to the rank/grade of private/E-1. 12. He was discharged for the good of the service in lieu of trial by court-martial on 14 February 1986 under the provisions of Army Regulation 635-200, chapter 10. His DD Form 214 shows he completed 2 years, 3 months, and 25 days of active service during this period with lost time of 7 years, 1 month, and 20 days (5 September 1978 to 8 January 1979 and 2 April 1979 to 19 January 1986). His character of service is shown as UOTHC. 13. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. 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 punishment includes a bad conduct or dishonorable 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. A discharge UOTHC is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. 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. DISCUSSION: 1. The evidence of record shows court-martial charges were preferred against the applicant on 23 January 1986 for 7 years, 1 month, and 20 days of AWOL from 5 September 1978 to 8 January 1979 and 2 April 1979 to 19 January 1986. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 3. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008212 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008212 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2