BOARD DATE: 3 June 2014
DOCKET NUMBER: AR20130017046
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 to a general discharge under honorable conditions.
2. The applicant states he needs the discharge changed so he can obtain medical attention for his hearing problem.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a 1991 letter addressed "To Whom It May Concern."
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 28 December 1983. He completed basic and advanced individual training as an artilleryman and he was stationed at Fort Ord, California. He was advanced to pay grade E-4 on 1 December 1994.
3. On 16 November 1986, court-martial charges were preferred against the applicant for attempted possession of a controlled substance (lysergic acid diethylamide) and assault with intent to commit rape.
4. After consulting with legal counsel, on 10 March 1987, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized. He acknowledged he understood he could receive a discharge under other than honorable conditions. He acknowledged that he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration. He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge. He did not submit a statement in his own behalf.
5. The applicant's chain of command recommended approval of the applicant's request. The separation authority approved his request and directed he receive an under other than honorable conditions discharge.
6. On 31 March 1987, the applicant was discharged, under the provisions of Army Regulation 635-200, chapter 10. His service was characterized as under other than honorable conditions. He had completed 3 years, 3 months, and 4 days of creditable active service and he had no recorded lost time.
7. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8. 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, an under other than honorable conditions discharge is normally considered appropriate.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for a chapter 10 discharge, after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a trial by court-martial and the felony conviction that he might have received.
2. The type of discharge directed and the reasons therefore were appropriate considering the facts of the case.
3. The available evidence is insufficient to support his request. There is no 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) AR20130017046
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