IN THE CASE OF:	  

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140000426 


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, in effect, an upgrade of his under other than honorable conditions discharge.  

2.  The applicant states:

* he maintains that his service was honorable; it was then and still is his belief that his discharge was not in fact for the good of the service
* after honoring the delayed entry program (DEP), his initial aptitude test alone qualified him for an enlistment bonus and advanced training
* he followed up his enlistment with completing training and being assigned in Germany
* his short but successful promotion schedule alone could serve as a qualifying judge of the prominent career he would have had
* his service was far more honorable than he was given credit for
* he was barely 18 years of age when he believes he was manipulated and coerced into assisting in providing evidence for what was believed to be a witch hunt against a staff sergeant
* the actions pursued against him had nothing to do with his service but more to serve a prejudicial chain of command

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document)
* Orders 189-108
* DD Form 458 (Charge Sheet)
* DA Form 2-1 (Personnel Qualification Record)
* DA Forms 4187 (Personnel Action) (promotion to E-3/reduction to E-1)

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's records show he was born in July 1966.  He enlisted in the U.S. Army Reserve under the DEP on 14 February 1984.  He was discharged from the DEP on 2 July 1984 and enlisted in the Regular Army at 18 years of age on 3 July 1984.

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 72E (Combat Telecommunications Center Specialist).  

4.  He was promoted to private/E-2 on 3 January 1985 (at the normal 6-month mark) and private first class/E-3 on 3 May 1985 (at the 10-month mark).  He was awarded or authorized the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar. 

5.  He served in Germany from 12 December 1984 until his discharge.  He was assigned to Headquarters and Headquarters Troop, 2nd Armored Cavalry Regiment. 

6.  On 11 September 1985, court-martial charges were preferred against the applicant for four specifications of committing consensual sodomy.  His immediate, intermediate, and senior commanders recommended trial by a court-martial empowered to adjudge a bad conduct discharge.  


7.  On 24 September 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he acknowledged that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances and that he had no desire to perform further service
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he did not elect to submit a statement on his own behalf

8.  His immediate, intermediate, and senior commanders recommended approval with the issuance of an under other than honorable discharge. 

9.  On 7 October 1985, after a legal review for legal sufficiency and consistent with the chain of command recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10.  The separation authority directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.  

10.  On 6 December 1985, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 1 year, 5 months, and 4 days of creditable active.

11.  On 9 February 1987, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his petition for a change to the characterization of his service or the reason for discharge. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, an undesirable discharge was considered appropriate at the time.

	a.  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.

	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. 

13.  According to the Manual of Courts-Martial, depending on the weight and intent, violating Article 125 (sodomy) carries a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

14.  The 2011 National Defense Authorization Act (NDAA) repealed the offense of consensual sodomy under the UCMJ.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant 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.  The applicant 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.  With respect to his arguments:

	a.  He was 18 years of age at the time of his enlistment and 19 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers.  Additionally, there is no evidence in the records and he has not provided sufficient evidence showing his acts were a result of his age.

	b.  The evidence of record clearly shows he violated the UCMJ and then willingly elected the discharge instead of facing a court-martial.  He could have elected the court-martial if he believed he was innocent or the charges were a "witch hunt" as he now believes. 

	c.  Although he enlisted in the DEP and successfully completed training, that is no different than what thousands of Soldiers did and continue to do on a daily basis.  He basically did what he was supposed to do as an enlistee.  

3.  However, the only offenses for which the applicant was charged were consensual sodomy (Article 125).  His chain of command preferred court-martial charges against him for 4 specifications of sodomy.  The court-martial charge sheet did not mention any aggravating factors such as committing forcible sodomy or committing an indecent assault.

4.  Based on current standards, particularly after the 2011 NDAA repealed the offense of consensual sodomy under the UCMJ, it is very reasonable to presume the applicant would not have been charged with such offense.  As such, there would have been no need for him to submit a request for voluntary discharge.  

5.  Based on a matter of equity and the change in the law, the applicant should be entitled to an upgrade of his under other than honorable conditions discharge to a fully honorable discharge. 

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by:

* voiding his DD Form 214 for the period ending 6 December 1985
* issuing him a new DD Form 214 to show he was discharged with an honorable characterization of service by reason of Secretarial Authority, with an SPD code of "JFF" and an RE code of "1"
* issuing him an Honorable Discharge Certificate, dated 6 December 1985



      _______ _   __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)                                         AR20140000426





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ABCMR Record of Proceedings (cont)                                         AR20140000426



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