IN THE CASE OF:  	  

		BOARD DATE:  23 September 2014  	  

		DOCKET NUMBER:  AR20140001589 


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 the characterization of his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states that he was discharged because of a false accusation of disrespecting an officer (second lieutenant (2LT)/O-1).  He attests that he was serving as a Barracks Sergeant at Fort Bragg, NC when a new 2LT arrived in the unit and wanted to inspect the barracks.  She conducted the inspection, but when she wanted to inspect his room he informed her that he was the Barracks Sergeant and did not believe his room should be inspected.  He contends that he did not disrespect her in any way, but as a result, he was offered nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), which he refused and ultimately led to his discharge.  Up to that point in his career, he had been a model Soldier and had even been awarded the Soldier's Medal for saving a Haitian soldier from drowning during Operation Uphold Democracy.

3.  The applicant provides a citation and certificate documenting his receipt of the Soldier's Medal.

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.  Having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 28 October 1992.  He held military occupational specialty (MOS) 88M (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  A review of the applicant's record shows that in addition to other awards and decorations, he was awarded the Soldier's Medal for heroism.  The citation for this medal states that the applicant distinguished himself in a heroic manner on 19 December 1994 at Jeremie, Haiti when he dove into extremely rough, murky water near Jeremie's shipping pier to save a drowning Haitian.  He swam 45 meters wearing combat fatigues, combat boots, and a life vest to assist another special forces Soldier in retrieving the victim in the dangerous, turbulent water.  If not for his heroic actions, the victim would have drowned in the treacherous waters.

4.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains Headquarters, U.S. Army Special Operations Command (USASOC), Fort Bragg, NC, memorandum, dated 26 January 1998, Subject:  Request for Discharge in Lieu of Trial by Court-Martial U.S. v. SGT (applicant's name), which shows, in part:

	a.  On 31 July 1997, during his summary court-martial, the applicant committed perjury by misrepresenting his military record of service.

	b.  The applicant was currently facing charges on:

* one specification of Perjury
* three specifications of making False Official Statements
* one specification of Altering Public Record
* fifteen specifications of wearing Unauthorized Awards and Decorations

	c.  The applicant submitted a request for discharge in lieu of trial by court-martial pursuant to chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service on 12 January 1998.

	d.  The applicant was found competent at a sanity board conducted by a psychiatrist.

	e.  The applicant's chain of command and the Staff Judge Advocate all recommended approval of his request with an other than honorable discharge.

5.  On 28 September 1997, the applicant's request for discharge was approved by the acting USASOC commander who directed that he be separated with a characterization of service of under other than honorable conditions.

6.  His DD Form 214 (Report of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, on 26 February 1998.

7.  The applicant's record is void of any evidence showing that he received disciplinary action for showing disrespect toward a commissioned officer by refusing to allow his room to be inspected.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally given to an individual who was discharged for the good of the service.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered.

2.  Although the applicant contends that he was unjustly punished and discharged for being disrespectful to a 2LT, there is no evidence in his record and he has not provided sufficient evidence to support this contention.

3.  The evidence of record indicates he was charged with the commission of numerous offenses punishable under the Uniform Code of Military Justice 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 is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20140001589





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ABCMR Record of Proceedings (cont)                                         AR20140001589



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