IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160008781 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. IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160008781 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :QAS :SMP :SMP DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160008781 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, received on 18 November 1985. 2. The applicant states he was a young Soldier. He has since grown to realize the incidents during that period of service were very poor judgement on his part. He has learned from those mistakes and would not repeat the same mistakes if he joined the United States Army today. 3. The applicant does not provide any 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. On 29 December 1982, the applicant enlisted in the Regular Army at the age of 19 for a period of three years. 3. A DA Form 4187 (Personnel Action), dated 3 May 1985, shows his duty status was changed from present for duty (PDY) to absent without leave (AWOL), effective 1 May 1985. 4. A DA Form 4187, dated 7 May 1985, shows his duty status was changed from AWOL to PDY, effective 6 May 1985. 5. On 15 May 1985, the applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for a violation of Article 86 (AWOL). He was reduced in rank from specialist four/E-4 to private first class/ E-3. 6. On 9 October 1985, seven separate DA Forms 4187 were signed and show: * his duty status was changed from PDY to AWOL, effective 24 May 1985 * his duty status was changed from AWOL to PDY, effective 3 June 1985 * his duty status was changed from PDY to AWOL, effective 12 June 1985 * his duty status was changed from AWOL to dropped from rolls (DFR), effective 6 July 1985 * his duty status was changed from DFR to returned to military control (RMC), effective 5 September 1985 * his duty status changed from RMC to AWOL, effective 13 September 1985 * his duty status changed from AWOL to DFR, effective 8 October 1985 7. On 29 October 1985, the applicant surrendered to military authorities at Fort Bragg, North Carolina. 8. A DD Form 4187, dated 30 October, shows the applicant's duty status was changed from DFR to PDY, effective 29 October 1985. 10. On 30 October 1985, the applicant was charged with being AWOL (UCMJ, Article 86). His DD Form 458 (Charge Sheet), item 10 (Charge), shows: * without authority he was absent from his unit from on or about 8 July 1985 to on or about 4 September 1985 * without authority he was absent from his unit from on or about 13 September 1985 to on or about 29 October 1985 9. On 30 October 1985, the applicant and his legal counsel completed a request for discharge for the good of the service, which shows: a. The applicant 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 understood that he may request discharge for the good of the service because of the following charge which has been preferred against him under the UCMJ which authorizes the imposition of a bad conduct or dishonorable discharge for violation of Article 86, UCMJ, AWOL for more than 30 days. b. He made the request of his own free will and had not been subjected to any coercion whatsoever by any person. He was given advice of the implications that are attached to it and by submitting the request he understood the elements of the offense charged and he was guilty of the charge against him. Moreover, under no circumstances did he desire further rehabilitation and he had no desire to perform further military service. c. He consulted with counsel for consultation and was fully advised of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at that time, and the maximum permissible punishment if found guilty. Although he was furnished legal advice the decision was his own. d. He understood that if his request for discharge was accepted he could be discharged under conditions other than honorable and furnished an under other than honorable discharge certificate. He was advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge: (1) He could be deprived of many or all Army benefits and he may be ineligible for many or all benefits administered by the Veterans Administration. (2) He understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws. (3) He understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. (4) He understood there is no automatic upgrading or review by any government agency of a less than honorable discharge and he must apply to the Army Discharge Review Board (ADRB) or ABCMR if he wished a review of his discharge, also the act of consideration by either board does not imply that my discharge will be upgraded. e. The applicant did not submit statements in his own behalf with his request. 10. On 5 November 1985, the applicant’s commander recommended approval of the applicant's request for discharge and the issuance of a discharge certificate under other than honorable conditions (UOTHC). 11. On 18 November 1985, the appropriate authority approved the request for discharge in lieu of trial by court-martial, directing the issuance of a discharge under other than honorable conditions and that the applicant be reduced to private/E-1. 12. On 5 December 1985, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as UOTHC. He completed 2 years, 6 months, and 14 days of net active service. 13. The applicant's record is void of evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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's record shows he was AWOL from on or about 8 July 1985 to on or about 4 September 1985 and from on or about 13 September 1985 to on or about 29 October 1985, an offense punishable under the UCMJ with a punitive discharge. 2. The applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160001822 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008781 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2