IN THE CASE OF:	  

		BOARD DATE:  25 March 2014

		DOCKET NUMBER:  AR20130014082 


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 other than honorable discharge to an honorable discharge.

2.  The applicant states he was in fear of going to jail, so he accepted an other than honorable conditions discharge.  He has been out of the Army for 20 years and believes his discharge should be upgraded because many Soldiers with similar records have had their discharges upgraded.  

3.  The applicant provides a self-authored statement.

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 6 February 1986.
3.  On 9 May 1990, while serving in the rank of sergeant, charges were preferred against the applicant for:

   a.  Being derelict in the performance of his duties as Charge of Quarters on or about 22 April 1990;

   b.  Wrongfully communicating a threat to injure another Soldier and his family on or about 26 and 27 April 1990;

   c.  Oppressing another Soldier subject to his orders on or about 27 April 1990;

   d.  Willfully disobeying a lawful order from his superior commissioned officer on or about 4 May1990;

   e.  Using disrespectful language and deportment toward a superior warrant officer on or about 4 May 1990;

   f.  Willfully damaging military property of the United States on or about 4 May 1990; and

   g.  Wrongfully using provoking and reproachful words toward a staff sergeant on or about 4 May 1990.

4.  Evidence shows he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, 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.

5.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting 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.  He further 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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  On 9 June 1990, he submitted a statement in his own behalf to accompany his request for discharge.  He stated, in effect, that he had made a mistake, but explained that he has been under stress due to his pending divorce and separation from his children, financial difficulties, dental problems, and removal from his duty position.

6.  On 20 June 1990, 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, and directed an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 27 June 1990, the applicant was discharged accordingly.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial.  This form shows he completed 4 years, 4 months, and 22 days of creditable active service with no time lost.

8.  On 5 November 1999, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board determined he was properly discharged and denied his request for an upgrade of his undesirable discharge. 

9.  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.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show 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.  Further, his discharge accurately reflects his overall record of service.

2.  The evidence shows the applicant voluntarily chose to commit the offenses which ultimately led him to face a trial by court-martial which could have resulted in a dishonorable discharge or a bad conduct discharge.  Instead, he chose to request a voluntary discharge.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130014082





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014082



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1