IN THE CASE OF:	  

		BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120008460 


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 to a general discharge.

2.  The applicant states his discharge was unjust because it was based on lies.  The two other Soldiers lied; he did not assault the Charge of Quarters (CQ) runner.  He was afraid to go back to the court-martial on the same day he was found not guilty of assault.   He was young and scared.  He was facing many years in prison. 

3.  The applicant did not provide any 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's records show he was born on 25 March 1968 and enlisted in the Regular Army at 18 years of age on 7 August 1986.  He was trained in and held military occupational specialty 11B (Infantryman). 

3.  He served in Alaska from January 1988 to August 1990.  He was awarded or authorized the Army Service Ribbon, Air Assault Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 29 June 1987, dereliction in the performance of his duties
* 24 June 1988, failure to report on three separate occasions

5.  On 1 December 1988, he was confined by civil authorities in Anchorage, AK, for assault; however, he was released to military control on 2 December 1988. 

6.  On 28 December 1988, he was convicted by the District Court of the State of Alaska of assault and sentenced to 60 days of confinement (suspended), a fine (partially suspended), and completion of an awareness program.

7.  On 26 February 1989, he was again confined by civil authorities in Anchorage, AK, and on 28 February 1989, he departed in an absent without leave (AWOL) status upon his release from jail.  He returned to military control at Fort Richardson, AK, on 2 March 1989. 

8.  On 16 March 1989, court-martial charges were preferred against the applicant for one specification of assault, one specification of disorderly conduct, four specifications of failing to report, and two specifications of wrongfully consuming alcohol.  

9.  On 16 March 1989, he 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

10.  On 16 March 1989, the convening authority disapproved his request and ordered trial by a court-martial.  

11.  On 23 March 1989, he was convicted by a special court-martial of four specifications of failing to repair and two specifications of wrongfully possessing alcoholic beverages.  The court sentenced him to a forfeiture of pay, restriction, and hard labor without confinement.  

12.  On 27 March 1989, court-martial charges were preferred against the applicant for:

* one specification of unlawfully striking another Soldier on the face with a closed fist
* one specification of willfully disobeying a lawful order
* one specification of being AWOL from 28 February to 2 March 1989

13.  On 30 March 1989, he 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200.

14.  In his request for discharge, the applicant acknowledged that:

* he was making this request of his own free will and had not been coerced by any person whatsoever
* he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

15.  The applicant's immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service. 


16.  Consistent with the chain of command's recommendations, on 19 April 1989, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10, Army Regulation 635-200, directed reduction to the lowest enlisted grade, and the issuance of an under other than honorable conditions discharge.  The applicant was accordingly discharged on 25 April 1989.  

17.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service, in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 8 months, and 17 days of creditable active service with 2 days of lost time. 

18.  On 31 December 1990, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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 AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.

2.  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 chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his extended period of AWOL.

3.  The applicant was 18 years of age when he enlisted, 19 years of age when he received his first Article 15, 20 years of age when he was convicted by civil court, and 21 years of age when he was convicted by a court-martial.  There is no evidence his continuous misconduct was caused by his age or that he was any less mature than other Soldiers who successfully completed their term of service.  

4.  Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20120008460





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120008460



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1