IN THE CASE OF:	  

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140002842 


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.  

2.  The applicant states:

* he was represented by a military attorney whom he believes did not properly represent him
* the attorney explained the options but suggested he takes the discharge and not face jail time
* the idea of facing jail time frightened him and he took the only option that was suggested by the attorney
* he took the advice of the attorney as he was young and he did not know better
* he feels if he had been better represented, he would have made a different decision and not been given this characterization of service

3.  The applicant provides: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three Department of Veterans Affairs (VA) Forms 21-438 (Statement in Support of Claim) 


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 August 1963 and he enlisted in the Regular Army at nearly 19 years of age on 19 July 1982.  He was trained in and held 13B (Cannon Crewmember).

3.  He served in Germany from 7 November 1982 to 6 May 1984.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Air Assault Badge, Marksman Marksmanship Qualification Badge with Rifle Bar    (M-16), and Expert Marksman Marksmanship Qualification Badge with Grenade Bar. 

4.  On 25 August 1984, his immediate commander advised him that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 112, UCMJ, for wrongfully using marijuana.  

5.  On 29 August 1984, after having been afforded the opportunity to consult with counsel, he demanded trial by a court-martial. 

6.  On 20 November 1984, court-martial charges were preferred against the applicant for one specification of wrongfully possessing marijuana and one specification of wrongfully using marijuana.  

7.  On 17 December 1984, 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 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 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 VA
* 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 26 December 1984, 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 28 December 1984, 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 2 years, 5 months, and 10 days of creditable active service. 

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

12.  He provides three VA Forms 21-4138, dated 18, 20, and 31 March 2011, as follows: 

	a.  VA Form 21-4138, dated 20 March 2011, authored by him.  He states during boot camp, he went to the Post Exchange to buy alcohol at an inappropriate time.  Another Soldier tried to hurt him when he was in boot camp.  When he was stationed in Germany, he developed bad habits.  The racism was blatant and he would never forget being jumped by 3 fellow Soldiers and being hit in the mouth by a sergeant for wanting to press charges.  His spirits went dead and he thought less of himself.  This led him to drugs and unprotected sex. Drugs became a choice while at Fort Campbell.  This led to his departure from the service because he was not given any options from his attorney. 

	b.  VA Form 21-4138, dated 18 March 2012, from an individual who describes himself as the applicant's friend and remembers him coming home in 1985 with a bad discharge.  However, the applicant has since changed.  He was angry about leaving the military and being jumped by other Soldiers while on guard duty.  He was traumatized by the military and turned to drugs when he came home. 

	c.  VA Form 21-4138, dated 31 March 2011, from his father.  He states the applicant had dreams of making the military a career.  He told him when he was on guard duty one night, three Soldiers beat him up for no reason and another sergeant hit him in the mouth.  He felt the Army did not treat him fairly and started using drugs and alcohol.  He went into crime and as a result, he was imprisoned for 13 years.  He has since changed after having received counseling.  He has received a degree.  He deserves an honorable discharge. 

13.  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 discharge under other than honorable conditions is 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. 

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.  The applicant was nearly 19 years of age at the time of his enlistment and 21 years of age at the time he committed his offense.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

	b.  Contrary to his contention that he was improperly represented, the evidence of record clearly shows when his commander advised him that he was considering whether he should be punished under Article 15 of UCMJ for wrongfully using marijuana, he consulted with counsel and he demanded trial by a court-martial. 

	c.  Also contrary to his contention, after court-martial charges were preferred against him, he 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 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.   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 VA
* 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

3.  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 untrue.  

4.  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 also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his service to either honorable or general.

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 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)                                         AR20140002842





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ABCMR Record of Proceedings (cont)                                         AR20140002842



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