IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110012955 


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 honorable conditions (general) discharge.

2.  The applicant states he was intimidated by his superior officers and signed his nonjudicial punishment (NJP) and discharge papers under duress.

3.  The applicant provides no additional documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under honorable conditions (general) discharge.

2.  Counsel defers to the applicant's statement.

3.  Counsel provides no additional documentary 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 for a period of 5 years and
19 weeks on 28 November 1989.  He was awarded military occupational specialty 95B (Military Police).

3.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]) shows the applicant received NJP for making a false official statement with intent to deceive.  The Article 15 was read to the applicant by his first sergeant on 11 December 1992 and he was afforded the opportunity to consult with counsel.

	a.  On 16 December 1992, the applicant indicated that he did not demand trial by court-martial, instead he requested an open hearing.  A person to speak in his behalf was not requested; however, he did provide matters in defense, mitigation, and/or extenuation.  

	b.  On 16 December 1992, the applicant's company commander conducted the hearing and imposed punishment.  The applicant did not appeal the NJP.

4.  A DA Form 2627 shows the applicant received NJP for wrongfully concealing stolen ration cards and wrongfully receiving four boxes of various items, the property of the U.S. Government.

	a.  The Article 15 was read to the applicant by his first sergeant on 1 October 1993 and he was given until 6 October 1993 to consult with his retained civilian attorney and report to the commander with his decision.

	b.  On 25 October 1993, the applicant indicated that he did not demand trial by court-martial, instead he requested a closed hearing.  He requested a person to speak in his behalf and he also provided matters in defense, mitigation, and/or extenuation at the hearing.  

	c.  The applicant's company commander conducted the closed hearing and imposed punishment.  The applicant appealed the NJP.


	d.  On 8 November 1993, a captain serving in the Judge Advocate General's Corps considered the proceedings and concluded that the proceedings were conducted in accordance with law and regulation, and that the punishment imposed was not unjust or disproportionate to the offenses committed.

	e.  On 9 November 1993, the brigade commander denied the applicant's appeal.

5.  On 15 December 1993, the applicant's commander recommended the applicant be barred from reenlistment.  His recommendation was based on two Article 15s, three counseling statements (i.e., notification of relief from MP duties and being late for formation on two occasions), and a letter of reprimand.

	a.  The battalion commander approved the bar to reenlistment  on 3 January 1994.

	b.  The applicant did not appeal the bar to reenlistment.

6.  On 9 February 1994, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, due to commission of several serious offenses.  The basis for the commander's recommendation was the applicant's larceny of private and government property, making a false official statement, several failures to report for duty, and inattentive driving which caused an accident with injuries.  The applicant was informed of his rights and that the separation authority could direct either an honorable, under honorable conditions, or under other than honorable conditions discharge.

7.  On 9 February 1994, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He acknowledged that military legal counsel for consultation was available to assist him and he declined that opportunity.

   b.  He indicated that he would submit statements in his own behalf.

   c.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharged was issued to him.

   d.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   e.  The applicant placed his signature on the document on 9 February 1994.
   
	f.  The company commander indicated that the applicant elected to submit statements in his behalf and he was given seven days to turn in the statements.  As of 23 February 1994, no statements had been received.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action under honorable conditions.

9.  On 1 March 1994, the separation authority approved the chain of command's recommendation for discharge of the applicant and directed he be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct and issued an under honorable conditions (general) discharge.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 14 March 1994 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with his service characterized as under honorable conditions.  He completed 4 years, 3 months, and 17 days of net active service.

11.  On 13 May 2000, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the ADRB requesting upgrade of his under honorable conditions discharge to an honorable discharge.  On 21 June 2000, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 107 for making a false official statement knowing it to be false and also under Article 134 for knowingly receiving, buying, or concealing stolen property.


13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (one for which a punitive discharge is warranted and authorized), and convictions by civil authorities.

    	(1)  Paragraph 14–12c provides that Soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely-related offense under the Manual for Courts-Martial.

    	(2)  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was intimidated by his superior officers and signed his NJP and discharge papers under duress; therefore, his discharge should be upgraded to fully honorable.

2.  The applicant received NJP on two occasions.  In both instances, prior to imposition of the NJP, the applicant was afforded the opportunity to consult with counsel.  He did not demand trial by court-martial in either instance, but instead requested proceedings under Article 15.  Moreover, there is no evidence, and the applicant provides insufficient evidence, to show he signed the NJP because he was intimidated by his superior officers.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
	a.  The applicant acknowledged that he had been advised by consulting counsel regarding the separation action.  In addition, he elected to submit statements in his own behalf; however, he failed to do so.  Thus, the evidence of record refutes the applicant's contention that he signed his discharge papers under duress.

	b.  Therefore, the type of discharge directed and the reasons therefore were appropriate and equitable.

4.  The applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

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.

ABCMR Record of Proceedings (cont)                                         AR20110012955



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ABCMR Record of Proceedings (cont)                                         AR20110012955



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