IN THE CASE OF:	  

		BOARD DATE:	  8 October 2014

		DOCKET NUMBER:  AR20140003568 


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 his under other than honorable conditions discharge be upgraded to a fully honorable discharge or at least a general discharge.

2.  The applicant states he told the truth from day one (he did not do it!).  He was told that the whole thing would go away if he signed the papers and agreed to an under other than honorable conditions discharge.  He was young and did not understand what he was doing and he had bad counsel.  He just turned 50 years of age and he wants the U.S. Army to know the truth before he dies. 

3.  The applicant provides a four-page handwritten letter explaining his application. 

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 10 August 1983 at age 19 for a period of 3 years and training as a unit supply specialist.  He completed his basic training at Fort Knox, KY and his advanced individual training at Fort Lee, VA.  After he completed his training he was transferred to Fort Lewis, WA for his first and only duty assignment.

3.  On 26 July 1984, nonjudicial punishment (NJP) was imposed against him for the wrongful possession of marijuana.  He appealed the punishment, claiming he did not do it; however, his appeal was denied on 8 August 1984.

4.  On 1 November 1984, court-martial charges were preferred against him for unlawful entry and attempting to commit an indecent assault upon a female Soldier in her barracks room on 22 September 1984.

5.  On 29 January 1985, after consulting with defense counsel, he submitted a request for 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.  

	a.  In his request, 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.  

	b.  He admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  

	c.  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.  

	d.  He elected not to submit a statement in his own behalf.

6.  On 7 February 1985, the appropriate authority (a brigadier general) approved his request for discharge and directed the issuance of an under other than honorable conditions discharge certificate. 

7.  On 15 February 1985, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 1 year, 6 months, and 6 days of creditable active service.

8.  On 2 October 1985, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended that he was unjustly discharged for offenses he did not commit, and given the discrepancies contained in the investigative reports it is doubtful he would have been convicted at court-martial or that he would have received a punitive discharge.

9.  The applicant was granted a personal appearance before the ADRB Travel Panel in Cleveland, Ohio on 25 September 1986 and was represented by counsel.  The board members carefully reviewed his entire record and listened intently to his testimony, but were not persuaded that a change in discharge was warranted.  The ADRB denied his application on 17 October 1986.

10.  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 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.

	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 voluntary request for separation 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 regulations with no indication of any violations of the applicant's rights.  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 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 given the serious nature of his offense and his otherwise undistinguished record of service.  He was 19 years old when he enlisted and almost 21 years old when charges were preferred against him.

4.  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)                                         AR20140003568





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ABCMR Record of Proceedings (cont)                                         AR20140003568



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