BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140000596 


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 under other than honorable conditions discharge to an honorable discharge.  

2.  He states his discharge was inequitable as he accepted a chapter 10 (in lieu of court-martial) due mostly to no or inadequate military legal representation and unfavorable circumstances.  He disputes the charges on the DD Form 458 (Charge Sheet) in a four-page statement of facts.  He contends the discharge was too harsh for his overall record of service.  The alleged offenses today would not warrant such a discharge, and morally and ethically it did not at that time.  Had he been allowed to stay, his military career may have been fulfilled by now.

3.  He adds that the physical training (PT) sessions, particularly the running portion, were led by a young, overzealous and somewhat extremist captain who would run them in the neighboring native rice fields and paddies while stationed in Seoul, Korea.  This unorthodox protocol has caused him major pain and irreparable damage, which has led to him not being able to perform at least 50% of his total body movements.  

4.  The applicant states the injuries unfortunately have led to him having a serious employment handicap and he is requesting, through the Department of Veterans Affairs (VA), that he be granted a service-connected disability compensation rating.  



5.  The applicant provides: 

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a document from the VA
* a charge sheet
* a self-authored dispute of the charge sheet
* an extract of his military records which includes medical documents

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.  After a period of prior enlisted service in the Army National Guard, he enlisted in the Regular Army on 2 February 1988 and served in military occupational specialty 76P (Materiel Control and Accounting Specialist).  

3.  He provided two Standard Forms (SF) 88 (Report of Medical Examination) showing the results of his initial enlistment examination and his separation examination.  His initial examination showed he was qualified for entrance and he was diagnosed with asymptomatic pes planus (flat feet).  

4.  He was assigned to Korea on 12 February 1988.  The highest rank he attained while serving on active duty was private/E-2.  His record contains no special recognition or awards and no acts of valor.  

5.  The applicant's record does contain a Bar to Reenlistment Certificate, dated 28 July 1988.  This document shows he received nonjudicial punishment (NJP) on 28 July 1988 for failing to go to his appointed place of duty at the prescribed time and for being derelict in the performance of his duties.  It was also stated that he had been counseled by his chain of command eight times since his arrival in February 1988.  The counseling statements indicate that he did not possess the self-discipline, personal competence, and adaptability for the military lifestyle required to meet the minimum requirements for reenlistment. 
6.  A DD Form 458 dated 18 January 1989 shows his chain of command recommended a trial by special court-martial and a bad conduct discharge for the following:

* Charge I - Violating Article 92, Uniform Code of Military Justice (UCMJ) - four specifications of violating lawful orders
* Charge II - Violating Article 95, UCMJ - resisting apprehension
* Charge III - Violating Article 134, UCMJ - specification 1 (failing to pay a debt) and specification 2 (giving a false sworn statement) 

7.  He provided a self-authored dispute of the charge sheet, dated 2 September 2013, which shows his arguments for each charge and specification.

8.  On 6 February 1989, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge under other than honorable conditions, and the rights available to him.  In his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser-included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

9.  He also stated he understood that if his discharge request was 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.  He further indicated he understood he could encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  After being advised of his rights, the applicant elected to submit a statement on his behalf and requested a separation physical.  His separation physical showed he was diagnosed with pes planus and was qualified for retention.

10.  In his statement, he requested that he be granted a general discharge rather than an under other than honorable conditions discharge.  He said he regretted the infractions and mistakes he made and that he wanted nothing more than to serve his country.  He was truly a team player and had loved his job with the Army.  

11.  The applicant's chain of command recommended approval of his request for discharge for the good of the service and recommended he be given an under other than honorable conditions discharge.  The appropriate approval authority 

approved the request and directed the applicant's discharge under other than honorable conditions.

12.  Accordingly, on 1 March 1989, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His DD Form 214 shows his characterization of service as under other than honorable conditions, his reduction to pay grade E-1, completion of 1 year and 29 days of net active service, 4 months and 3 days of prior active service, and 1 year, 1 month, and 27 days of prior inactive service.  

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

14.  The applicant provides a VA document that shows he recently lost his job and is currently unemployed.  He needs the VA Regional office to make a decision on his character of service because he is unable to pay his rent and unable to receive any medical benefits.  

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

	a.  Chapter 10 states 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  





DISCUSSION AND CONCLUSIONS:

1.  The applicant's separation physical shows he was fully qualified for retention and that he was diagnosed with pes planus.  Furthermore, the evidence of record shows he received NJP and several corrective counseling statements.  It also shows he was barred from reenlisting because he lacked self-discipline and adaptability to the military lifestyle.  

2.  His charge sheet shows he committed several offenses for which he could have been tried by a special court-martial and been given a bad conduct discharge.  He is disputing his charges nearly 24 years later.  Rather than face court-martial and defend his position at that time, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service, and his request for discharge was approved.

3.  Accordingly, he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

4.  His record does not contain any acts of valor or special recognition which would warrant an upgrade of his discharge.  

5.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  In view of the foregoing, there is no basis for granting his request for an upgrade of his discharge to either fully honorable or general, under honorable conditions.









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)                                         AR20140000596



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ABCMR Record of Proceedings (cont)                                         AR20140000596



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