IN THE CASE OF:
BOARD DATE: 10 September 2015
DOCKET NUMBER: AR20150002521
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 that his under other than honorable conditions (UOTHC) discharge be upgraded.
2. The applicant states his mother was stricken with cancer and he left to be by her side.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his mother's death certificate.
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 4 January 1996, completed training, and was awarded the military occupational specialty 11B (Infantryman).
3. The applicant was absent without leave (AWOL) from 7 August 1996 through 4 November 1996.
4. On 8 November 1996, court-martial charges were preferred for the above period of AWOL.
5. On 8 November 1996, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge). He acknowledged that if he were found guilty of the charge or a lesser included charge, he could be discharged with a punitive discharge and, if his request was accepted, he could receive a discharge UOTHC and be furnished a UOTHC Discharge Certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.
6. On 18 December 1996, the court-martial convening authority approved the applicant's request for discharge in lieu of trial by court-martial. He directed the applicant be reduced to the lowest enlisted grade and discharged with a UOTHC Discharge Certificate.
7. The applicant was discharged accordingly on 4 March 1997. His DD Form 214 shows he had 11 months and 1 day of creditable service with lost time shown as "19960807-19961104."
8. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.
9. He provides his mother's death certificate, which shows she died of lung cancer on 15 March 2000.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides the following:
a. An honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty.
b. A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A UOTHC discharge is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.
2. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
3. His mother's illness was unfortunate. However, there were options available to him other than going AWOL.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ ___x____ ____x___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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.
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