IN THE CASE OF

		BOARD DATE:	    29 May 2014

		DOCKET NUMBER:  AR20130016030 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* he served his country to the best of his ability
* he asked, but did not receive any help from his superiors

3.  The applicant provides:

	a.  his Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim for Service Connection Post-Traumatic Stress Disorder (PTSD)) and allied documents;

	b.  three DA Forms 638 (Recommendation for Award of Legion of Merit or Below);

c.  orders; 

	d.  Fort Bragg (FB) Form 2487 (Background Check); 

	e.  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); and 
   f.  Standard Form (SF) 312 (Classified Information Nondisclosure Agreement).

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 11 August 1988.

3.  He submitted:

* an FB Form 2487, dated 6 April 1989, which shows he underwent a background check and no derogatory information was found
* an SF Form 312, which shows he completed a classified information nondisclosure agreement 
* three DA Forms 638 which show:

* he was recommended for award of the Army Achievement Medal 
during the period 15 April to 4 May 1990 
* he was awarded the Army Achievement Medal in August 1990 
* he was recommended for award of the Army Achievement Medal 
during Operation Desert Storm on 10 April 1991 

4.  His record contains:  

	a.  sixteen DA Forms 4856 (General Counseling Form), dated from 		       12 January 1992 to 28 February 1993, for failure to report for duty, leaving his appointed place of duty, losing government property, bad checks, using cocaine, distortion and forging of a medical treatment sheet, and failing to follow instructions.

	b.  disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one instance failure to go at the time prescribed to his appointed of duty on 
23 September 1992.

	c.  a DD Form 458 (Charge Sheet), dated 10 February 1993, which shows 
court-martial charges was preferred against him for:

		(1)  one specification of being absent without authority during the period        29 January to 2 February 1993; 

		(2)  three specifications of failing to go to his appointed place of duty on 22, 23, and 24 September 1992; and 

		(3)  two specifications of wrongfully using cocaine between 1 July and    12 July 1992 and 20 November and 7 December 1992.

5.  On 19 February 1993, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him.  Following counseling, the applicant submitted a voluntary written request for 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 indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

6.  The applicant's unit and intermediate commanders subsequently recommended approval with an under other than honorable conditions discharge.

7.  On 19 March 1993, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and given an under other than honorable conditions discharge.

8.  On 1 April 1993, the applicant was discharged accordingly.  He completed 4 years, 7 months, and 16 days of creditable active service with 5 days of lost time.

9.  He submitted a VA Form 21-4138, dated 30 August 2013, and allied documents which show he applied to the VA for service connection for PTSD.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  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.

	b.  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.

	c.  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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His service records show he received sixteen counseling statements, one Article 15 under UCMJ, court-martial charges which included two specifications of wrongful use of cocaine, and was absent without authority for a total of 5 days.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  There is no evidence of record and he did not submit any evidence that shows he sought help from his chain of command or through other channels, such as the chaplain or hospital. 

4.  In view of the foregoing evidence, there is an insufficient basis for upgrading his 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)                                         AR20130016030





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016030



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1