IN THE CASE OF:	 

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140002747 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states, in effect, that his discharge was unjust and amounted to an abuse of power by those in charge because he was not given a chance to rehabilitate himself.  The charges against him did not warrant a trial by court-martial and should have been handled at company level.  The noncommissioned officers (NCO) and his fellow Soldiers were having what amounted to a big sexual party at the mess hall without regard to being married or single.  He did not want to ruin the careers of those Soldiers so he has kept that secret for           24 years, but now it is time to take care of himself. 

3.  The applicant provides three separate letters from himself explaining his application and seven third-party character references.

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 30 July 1987, after serving as a food service specialist in the South Carolina Army National Guard, the applicant enlisted in the Regular Army.  He enlisted for a period of 3 years and assignment to Europe.  He was transferred to Hanau, Germany on 7 August 1987, for assignment to a Heavy Materiel Supply Company.

3.  On 7 March 1989, his commander notified him that he was initiating action to bar him from reenlistment.  He cited as the basis for his recommendation a letter of reprimand the applicant received for misconduct on 16 February 1989, his assault on an NCO, being absent from his place of duty, writing bad checks, failure to pay just debts, and failure to respond to repeated counseling.  

4.  The applicant did not submit a statement in his own behalf and the battalion commander approved the bar on 16 May 1989.  The applicant did not appeal the bar. 

5.  On 27 July 1989, charges were preferred against the applicant for six specifications of failure to go to his place of duty, two specifications of disobeying a lawful order from a superior NCO, willfully destroying flowers (property of the government), and two specifications of communicating indecent language to two females.

6.  On 7 August 1989, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation    635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement in his own behalf.  

7.  On 19 September 1989, the appropriate authority (a brigadier general) approved his request for discharge and directed that he be discharged under other than honorable conditions.

8.  On 17 October 1989, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 2 months, and 18 days of active service.

9.  On 27 April 1992, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that his unit was not concerned with helping and developing good Soldiers but was focused on hurting Soldiers.  After reviewing the evidence in his case, the ADRB determined that under the circumstances the applicant’s discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, 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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and conformed with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
3.  His contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given his multiple offenses, the nature of his offenses at the time, and his short period of service.

4.  Accordingly, his discharge does not rise to the level of 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)                                         AR20140002747





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ABCMR Record of Proceedings (cont)                                         AR20140002747



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