BOARD DATE:	  2 October 2014

		DOCKET NUMBER:  AR20140003240 


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 be upgraded to honorable.

2.  The applicant states:

	a.  He feels his discharge should be upgraded, from an under other than honorable conditions discharge to an honorable discharge, because after several years of separation from the Army he believes the Army values should transfer into civilian life as well.  

	b.  He is trying to uphold those values and be a positive role model and a leader by utilizing the skills he learned in the Army. 

	c.  His military career is being judged by one incident that happened a long time ago and he would like the opportunity to continue down the right path and to have two honorable discharges in his record.  

	d.  He has been out of the military for 6 years and he is actively involved in his local American Legion Post and Veterans of Foreign Wars (VFW) events.

	e.  He has enlisted in the Wounded Warrior Program and participates in Project VALOR; a research study for post-traumatic stress disorder (PTSD) funded by the U.S. Department of Defense and conducted by the National Center for PTSD.

	f.  The events that surrounded the characterization of his discharge were unfortunate.  He was involved in a physical confrontation with two Soldiers in his off-post residence in Anchorage, AK.

	g.  His now ex-wife was involved with one of the Soldiers who started the fight.  The situation was completely inappropriate and should have been handled better by all parties involved.

	h.  Looking back, he wishes he had walked away from the confrontation before it was too late.  He also feels his chain of command did not care to hear his side of the story due to a bias.

	i.  He was offered an under other than honorable conditions discharge in lieu of trial by court-martial.  After two enlistments, it was a hard deal to take.

	j.  He has since moved on from that part of his life and he has made the necessary adjustments to his life to be successful and happy.  He is currently a student at Montana State University and he is involved with a veteran studies program which is for veterans of all branches of the military.

	k.  He hopes that the Board will take into consideration his years of service to his country and the respect he has for the military and its members.

3.  The applicant provides three third-party letters of support.  

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 enlisted in the Regular Army on 16 June 1998.  On 19 January 2002, he reenlisted for a period of 4 years.  


3.  He accepted nonjudicial punishment (NJP) on 14 May 2005 for failing to obey a lawful general regulation by wrongfully failing to register his privately owned weapon at Fort Richardson, AK, and for fleeing apprehension from the military police (MP).  

4.  On 29 December 2005, while serving in the rank of sergeant, court-martial charges were preferred against him for unlawfully striking Private First Class (PFC) W with his hands and fists and for unlawfully striking PFC F with his hands, fists, and feet.  

5.  On 6 January 2006, he consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

6.  He acknowledged in his request that he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.  He was advised of:

* the nature of his rights under the UCMJ
* the elements of the offense with which he was charged
* any relevant lesser included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the possible defenses which appear to be available
* the maximum permissible punishment if found guilty

7.  He also acknowledged he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.  

8.  On 12 January 2006, the separation authority approved his request for discharge and directed his reduction to private/E-1 with his service characterized as under other than honorable conditions discharge.  On 25 January 2006, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 7 months, and 3 days of active duty service.

9.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 9 February 2011.  

10.  He provides letters of support that attest to his positive character traits and of his good service during Operation Enduring Freedom (OEF).  

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

	a.  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.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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 request for an upgrade of his under other than honorable conditions discharge has been carefully considered.  

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge he admitted he was guilty of the charges.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.

4.  His contentions, as well as his overall service to include his service in support of OEF were considered; however, his record of indiscipline includes NJP for failing to obey a lawful general regulation and court-martial charges for wrongfully striking two subordinate Soldiers, an offense for which he admitted guilt.  Based on the seriousness of his offense and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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)                                         AR20140003240



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ABCMR Record of Proceedings (cont)                                         AR20140003240



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