IN THE CASE OF:	  

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130002304 


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: 

* upgrade of his general discharge to an honorable discharge
* reconsideration of his previous requests for a change of his reentry (RE) code 4 to 3
* a personal appearance before the Army Board for Correction of Military Records (ABCMR) at his own expense

2.  The applicant states:

   a.  In September 2004, he violated a Federal policy by bringing a personally owned weapon onto a Federal installation which was negligently discharged due to his own fault.  He was voluntarily discharged and was issued an other than honorable conditions discharge.  He made the biggest mistake of his life and regrets it to this day.  He is starting with the first level to try to improve his life and his discharge.
   
   b.  In 2008, his discharge was upgraded to a general discharge.  He is grateful for this and thankful, but he would now like to have a fully honorable discharge because it means everything to him.  He has improved his life drastically since the upgrade of his discharge.  He is attending school and working towards his degree.  He works two jobs and is trying to have a                                                                                                                                                                                                                                                                                                                                                                                                                   relationship with his son.  Aside from his son an upgrade of discharge means the most to him because he misses what he stood for.  He misses the uniform and his old life. 
   
   c.  It is true he made his choice, but he is begging for another chance because he truly believes he was at his best.  He hopes he will be granted another hearing to earn a fully honorable discharge.
   
3.  The applicant provides:

* 2008 and 2009 ABCMR Record of Proceedings
* a letter from the Army Review Boards Agency
* Army Discharge Review Board (ADRB) – Case Report and Directive with DD Form 214 (Certificate of Release or Discharge from Active Duty) – general discharge
* two character reference letters

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 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 requests for a change of his RE code was previously considered by the Board on 30 December 2008 and 29 December 2009.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  It has been determined that this request for reconsideration was not received within one year of the ABCMR's original decision.  As a result, his request for reconsideration does not meet the criteria outlined and will not be further discussed in the Record of Proceedings.

3.  The applicant enlisted in the Regular Army (RA) on 5 October 1998.  He completed training and he was awarded military occupational specialty 21W (Carpentry and Masonry Specialist).  He reenlisted in the RA on 10 January 2002.  He was promoted to pay grade E-5 on 13 November 2002.  

4.  A DD Form 458 (Charge Sheet), dated 24 August 2004, shows he was charged with one specification each of failing to obey a lawful general regulation on or about 3 August 2004 by wrongfully carrying his privately owned weapon to a field training exercise and by not registering his privately owned weapon with the Provost Marshal.

5.  On or about 24 August 2004, the applicant's battalion commander recommended the charges be referred to a special court-martial empowered to adjudge a bad conduct discharge.

6.  On the same date, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued an under other than honorable conditions discharge, the results of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On or about 2 September 2004, the applicant's intermediate and senior intermediate commanders recommended approval of the applicant's request and recommended he be discharged under other than honorable conditions.

8.  On 2 September 2004, the separation authority approved the applicant's discharge and directed the applicant's reduction to the lowest enlisted grade and issuance of an under other than honorable conditions discharge.

9.  He was discharged accordingly on 21 September 2004 with an under other than honorable conditions discharge in pay grade E-1.  He completed 5 years, 11 months, and 17 days of creditable active service with no time lost.  

10.  On 24 April 2008, the ADRB granted the applicant an upgrade of his under other than honorable conditions discharge to a general discharge.  He was issued a new DD Form 214 to reflect this upgrade.

11.  The applicant provides copies of two character reference letters wherein the individuals stated their support of his request for an upgrade of his discharge.  The individuals also attested to the applicant being a reliable, dependable, and sincere individual and with his character he is a positive member of any team or organization.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

	a.  Chapter 10, a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could 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 was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 3-7a, an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 15-185 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  He consulted with counsel and he voluntarily and in writing requested separation from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses.  On 21 September 2004, he was discharged accordingly with an under other than honorable conditions discharge (later upgraded to general by the ADRB).

2.  The applicant's contentions were carefully considered; however, he provides insufficient evidence or argument to show his discharge should be further upgraded, or evidence sufficient to mitigate the character of his discharge.  In his request for discharge, he acknowledged he understood he could be furnished an under other than honorable conditions discharge.

3.  His records contain no evidence that would justify an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.  

4.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

5.  With respect to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

6.  In view of the foregoing, there is no basis for granting his 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.



ABCMR Record of Proceedings (cont)                                         AR20130002304





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ABCMR Record of Proceedings (cont)                                         AR20130002304



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