IN THE CASE OF:	   

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021729 


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
* removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his records

2.  The applicant states:

* he was in a motorcycle head-on collision on 10 December 1983 and he returned back to duty
* it was close to the expiration of his term of service and he was continuously harassed by his chain of command to reenlist 
* when the chain of command realized he was not going to reenlist, they started an Article 15 against him for frivolous charges
* he was wrongly incarcerated and he was denied medication for pain and injuries caused by the motorcycle accident
* a military attorney came by and told him that all court-martial charges were dropped due to lack of evidence
* he was without a doubt railroaded on his discharge after having accumulated awards, letters, and a dedicated work record

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 enlisted in the Regular Army on 29 October 1981 and he held military occupational specialty 76Y (Unit Supply Specialist).  He served in Germany from April 1982 to November 1983.

3.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Army Achievement Medal.  

4.  After completion of his Germany tour, he was reassigned to the 2nd Battalion, 31st Artillery, Fort Campbell, KY. 

5.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

6.  On 21 February 1984, he was admitted to Blanchfield Army Hospital after a motorcycle accident.  He was released to duty on 27 February 1984.  

7.  On 1 August 1984, the applicant's immediate commander notified the applicant that he (the commander) was considering whether he should be punished under Article 15, UCMJ, for absenting himself from his appointed place of duty without authority on 23 July 1984.  The DA Form 2627 shows the applicant placed his initials in the "I demand trial by court-martial” section. 

8.  On 9 July 1984, he underwent a medical examination that found him medically fit for retention and on 17 September 1984, he also underwent a mental status evaluation that also cleared him for separation. 



9.  On 29 August 1984, his immediate commander initiated a Bar to Reenlistment Certificate against him citing a previous incident of failure to report, indebtedness, an overdue traffic ticket, and shirking.  The applicant was provided with a copy of this bar and he elected to submit a statement on his own behalf.  However, he did not do so within the allotted time.  The bar was ultimately approved by the appropriate authority. 

10.  On 29 October 1984, court-martial charges were preferred against the applicant for:

* one specification of absenting himself from his appointed place of duty on 16 July 1984
* three specifications of failing to go at the time prescribed to his appointed place of duty on 23 July, 3 August, and 23 June 1984
* two specifications of disobeying lawful orders from superior noncommissioned officers
* one specification of theft on 22 August 1984
* one specification of communicating a threat to cut a sergeant's throat
* one specification of being AWOL from 20 to 22 October 1984
* one specification of assaulting another Soldier with a knife 

11.  On 29 October 1984, the applicant consulted with legal counsel and he 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 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 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he stated that "under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service"; 

	c.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge; and

	d.  he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  His chain of command, including the immediate, intermediate, and senior commanders, recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 

13.  On 14 November 1984, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 16 November 1984, the applicant was discharged accordingly.

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged 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 3 years, 8 months, and 18 days of creditable active service.

15.  On 13 November 1992, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge. 

16.  Army Regulation 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.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides 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.
17.  Army Regulation 27-10 (Military Justice) prescribes and implements the policies and procedures pertaining to the administration of military justice.  It implements the procedures prescribed by the Manual for Courts-Martial.  The version of the regulation in effect at the time:

	a.  Paragraph 2-8 states records of trial by summary court-martial and records of trial by special court-martial which do not involve approved sentences to a bad-conduct discharge shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation.

	b.  Paragraph 3-11 states all Army members (except Army personnel attached to or embarked in a vessel) may demand trial by court-martial in lieu of NJP under Article 15 of the UCMJ.  In deciding whether he wishes to elect trial by court-martial, the member is not entitled to be informed as to the type or amount of punishment he will be given if he does not demand trial.  However, upon his request, he will be informed of the maximum punishment which may be imposed under Article 15 by the officer who is to impose the punishment and of the maximum punishment that can be adjudged by court-martial upon conviction of the offense or offenses involved.

	c.  Paragraph 3-15d (Distribution of Article 15) states the DA Forms 2627, 2627-1, and 2627-2 will be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which has been considered by the officer authorized to impose the NJP will be attached to the original file.  In cases involving enlisted personnel the original form is forwarded to the U.S. Army Personnel Services Support Center, Fort Benjamin Harrison, IN for filing as a permanent document in the Army Military Human Resource Record; the first copy goes to the unit of assignment, for file above the Field Personnel File Divider in the individual's Military Personnel Records Jacket U.S. Army; and the second copy goes to the individual. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's commander advised the applicant that he was considering punishing him under Article 15, UCMJ, for absenting himself from his appointed place of duty without authority on 23 July 1984.  The applicant demanded trial by a court-martial.  When court-martial charges were preferred against him, the DA Form 2627 became an allied document, attached to the charge sheet, as proof the applicant was afforded the opportunity to make his own decision.  

2.  The contested form later became an allied document to the separation action that the applicant voluntarily requested.  He was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 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.  

3.  With respect to his argument:

	a.  The contested DA Form 2627 is properly filed as part of the court-martial charges as well as the separation packet.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  

	b.  Here, the applicant was provided a defense attorney, he was given the right to demand trial by court-martial, and he made the choice to be tried by a court-martial.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the service record.  There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.  

	c.  Contrary to his claim that the chain of command pressured him to reenlist, the available evidence shows he was barred from reenlistment.  

4.  Based on his record of indiscipline, which started before he arrived at Fort Campbell, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 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)                                         AR20120021729





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ABCMR Record of Proceedings (cont)                                         AR20120021729



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