BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20130020943 


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 honorable. 

2.  The applicant states that upon his discharge he was informed the character of service would automatically be upgraded to honorable after 4 years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 13 April 1994.

3.  His record contains Special Court-Martial Order Number 5, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, dated 
18 March 1997, which shows that contrary to his plea he was found guilty of violating Article 112a of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 6 October and 6 November 1995. 

4.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains Special Court-Martial Order Number 8, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, dated 11 June 1997, that shows the applicant, having been arraigned on multiple charges, the proceedings were terminated because the applicant requested a discharge in lieu of trial by court-martial pursuant to the provisions of Army Regulation 635-200 (Personnel Separations/Enlisted Personnel), chapter 10 for the good of the service which was approved on 14 May 1997, with the issuance of an under other than honorable conditions discharge.

5.  His record also contains a DD Form 214 that shows he was discharged for the good of the service in lieu of trial by court-martial on 20 June 1997, under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  The DD Form 214 he was issued shows he completed a total of 3 years, 2 months, and 8 days of creditable active service with no time lost.

6.  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.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 complete facts and circumstances surrounding the applicant's discharge were not available for review; however, his record indicates 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.

2.  Based on the information contained in Special Court-Martial Order Number 8, it appears he voluntarily and willingly requested discharge from the Army in lieu of trial by court-martial.  It is presumed 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.

3.  The evidence shows the applicant committed 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.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  Based on the applicant's record of indiscipline, 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, there is no basis for granting the applicant 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 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)                                         AR20130020943





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ABCMR Record of Proceedings (cont)                                         AR20130020943



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