IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20160008230 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: 31 May 2018 DOCKET NUMBER: AR20160008230 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. 2. The applicant states he was young and immature when he entered the military. He was not thinking how his actions would later affect him. He is now married with children, holds a steady job, and is a responsible person. If he could go back in time, he would have made the Army a career. 3. The applicant provides an endorsement by his intermediate commander related to his discharge action. 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 was born in April 1961 and enlisted in the Regular Army at 18 years and 3 months of age on 23 July 1979. He was assigned to Fort Gordon, GA for one station unit training. 3. On 1 October 1979, he departed his unit in an absent without leave (AWOL) status, but he returned to military control on 4 October 1979. 4. On 10 October 1979, at 18 years and 6 months of age, he again departed his unit in an AWOL status, and on 9 November 1979, he was dropped from the rolls as a deserter. He ultimately surrendered to military authorities on 16 April 1980. 5. On 29 April 1980, court-martial charges were preferred against the applicant for two specifications of AWOL from 10 October 1979 to 16 April 1980 and from 1 October 1979 to 4 October 1980. 6. On 1 May 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * he acknowledged he could be ineligible for many or all benefits administered by the Department of Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected not to submit a statement on his own behalf 7. On 11 May 1980, by endorsement, his intermediate commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 8. On 15 May 1980, consistent with the chain of command's recommendations, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10, and directed the applicant receive an under other than honorable conditions discharge with reduction to the lowest enlisted grade. The applicant was discharged on 16 June 1980. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 4 months and 14 days of active service during this period and he had lost time from 1 October to 3 October 1979 and from 10 October 1979 to 15 April 1980. 10. There is no indication 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. 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. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. It 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. 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. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. The evidence of record clearly shows the applicant was advised of his rights by legal counsel and he indicated that he knew the implications of his decision. No statement was provided by the applicant to raise any issues during the separation process. He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge. The separation authority determined the applicant's service did not rise to the level required for an honorable or a general discharge. 3. The applicant was 18 years and 3 months of age at the time of his enlistment and 18 years and 6 months of age at the time of his offenses. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 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) AR20160008230 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008230 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2