BOARD DATE: 19 July 2018 DOCKET NUMBER: AR20160016153 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: 19 July 2018 DOCKET NUMBER: AR20160016153 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: 19 July 2018 DOCKET NUMBER: AR20160016153 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 wants to clear up his record. His problems started during advanced individual training while at Redstone Arsenal, Alabama. He states he did not cheat during a test because it was an open-book test. At the time the rule was you could bring your bunkmates books to class if he was on furlough. He brought his bunkmates books to the test and a [civilian] employee thought he was cheating on the test. The books were behind him. He was in school for military occupational specialty (MOS) 55B (Ammunition Handler). He was kicked out of the school and sent to Fort Bliss, Texas for training in MOS 16D (Hawk Missile Crewman). He never got into the class. He was given extra details to perform such as painting rocks, cleaning weapons and performing extra physical fitness training. For him it was heartbreaking because he never got to learn a thing and nobody would help him. 3. The applicant provides his application and DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 2 May 1978. He completed basic training at Fort Knox, Kentucky and was reassigned to Redstone Arsenal for training in MOS 55B on 23 June 1978. On 13 July 1978, he was reassigned to Fort Bliss, Texas. He did not complete the course of instruction for MOS 55B. 3. On 5 August 1978, he departed his unit in an absent without leave (AWOL) status, but he returned to military control on 4 September 1978 at Moody Air Force Base, Georgia. He was provided a travel ticket to return to Fort Bliss, Texas. Records show he failed to return as instructed. He was then dropped from the rolls effective 5 September 1978. 4. On 17 October 1978, he returned to military control and was subsequently confined. 5. On 31 October 1978, court-martial charges were preferred against the applicant for one specification of AWOL from 5 September 1978 to 17 October 1978. 6. On 1 November 1978, 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 2 November 1978, by endorsement, his intermediate commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. In addition, this commander had interviewed the applicant who stated he went AWOL because he had personal and family problems. He had tried to get out of the Army at advanced individual training because he could not cope with military training. He went AWOL so he could get out. 8. On 13 November 1978, 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 22 November 1978. 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 10 days of net active service during this period and he had 71 days of lost time. 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. 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. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016153 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016153 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2