IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130020919


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.

2.  The applicant states:

* he was honorably discharged when he reenlisted – his DD Form 214 doesn't show he reenlisted
* he doesn't understand his discharge
* he had an unregistered gun on post – it wasn't his gun, it was in his car
* he takes responsibility for his actions
* he had just been promoted to sergeant (SGT)/E-5
* his punishment was too severe

3.  The applicant provides no additional 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.  On 24 June 1986, the applicant enlisted in the Regular Army in the rank/grade of private (PVT)/E-1.

3.  His records show he was promoted in rank/grade on the following dates:

* on 24 December 1986 to private/E-2
* on 1 April 1987 to private first class (PFC)/E-3
* on 1 September 1987 to specialist four (SP4)/E-4

4.  On 6 February 1990, he reenlisted in the Regular Army for a 3-year term.

5.  On 19 January 1993, he was reduced in rank/grade from SP4/E-4 to PFC/E-3.

6.  On 22 January 1993, court-martial charges were preferred against him for:

* two specifications of charge II for violating Article 91 of the Uniform Code of Military Justice (UCMJ) for disobeying the direct order of a senior noncommissioned officer (NCO) and assaulting an NCO, both instances on or about 19 January 1993
* a single specification of charge IV for violating Article 116 of the UCMJ for causing a breach of peace, on or about 19 January 1993

7.  On 9 February 1993, he 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.  Subsequent to receiving this legal counsel, he voluntarily 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.

8.  In his request for discharge, he acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.  He further 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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He declined to submit a statement in his own behalf.

9.  On 18 February 1993, the separation authority approved his request for discharge and directed the issuance of a discharge under other than honorable conditions.  In accordance with the separation authority's directive, he was reduced to the lowest enlisted rank/grade of PVT/E-1.

10.  On 24 February 1993, he was discharged accordingly.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and his service was characterized as under other than honorable conditions.  Item 18 (Remarks) of his DD Form 214 contains the following entries:

* IMMEDIATE REENLISTMENT THIS PERIOD:  860624-900205
* CONTINUOUS HONORABLE ACTIVE SERVICE FROM:  860624-900205

11.  His records are void of documentation that shows he was promoted to the rank/grade of SGT/E-5.

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

13.  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.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  The regulation directed that the purpose of the separation document is to provide the separating service member with documentary evidence of his or her military service.  The regulation provided that item 18 was used to record remarks required by Headquarters, Department of the Army, when a separate item was either not available on the form or when entries were too long for their respective blocks.  It further provided the following guidance relative to item 18:

Enter list of reenlistment periods for which a DD Form 214 was not issued, if applicable; e.g., "IMMEDIATE REENLISTMENTS THIS PERIOD:  761218-791001; 791002- 821001."  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except honorable, the following statement will appear as the first entry in item 18, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which a DD Form 214 was not issued; e.g., 761218) UNTIL (date before commencement of current enlistment; e.g., 821001)"; then enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant contends his reenlistment and previous period of honorable service (prior to his reenlistment) are not shown on his DD Form 214.  This contention is rejected as entries in item 18 of his DD Form 214 prove otherwise.

3.  With respect to the characterization of his discharge, his records show he was charged with the commission of an offense 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.

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

5.  As evidenced by his misconduct that resulted in court-martial charges, his 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 a discharge upgrade.

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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20130020919



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