IN THE CASE OF:	  

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140004989 


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 (UOTHC) discharge to an honorable discharge (HD).

2.  He states his attorney advised him that the type of discharge he received would be in his best interest.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 23 August 1995, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 12C (Bridge Crewman).

3.  A DD Form 458 (Charge Sheet), dated 5 May 1997, shows he was charged with:

* unlawfully striking an individual with a closed fist, pushing the individual to the ground, and kicking the individual numerous times on or about 10 December 1996
* using a controlled substance (marijuana) on divers occasions in January and February 1997
* attempting to purchase a controlled substance (hashish) on or about 10 December 1996

4.  On 6 October 1997, he consulted with counsel who advised him of the ramifications of his trial by court-martial and the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

5.  After consulting with counsel, he voluntarily requested a post-trial discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 10-1c.  He stated:

* he understood he could request discharge because he was guilty of one or more serious offenses for which the UCMJ authorized imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation because he had no desire to perform further military service
* he was making the request pursuant to an agreement with the Government
* he had been advised that he could receive a UOTHC discharge
* he requested to be discharge with a general discharge (GD) under honorable conditions
* he understood that, as a result of a UOTHC discharge – 
* 
* he would be deprived of many Army benefits
* he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights as a veteran under both Federal and State law

* he understood he could expect to encounter substantial prejudice in civilian life because of a less than honorable discharge
* he elected not submit a statement in his own behalf 

6.  On 20 November 1997, after reviewing the applicant's request, a Staff Judge Advocate (SJA) recommended in part that the separation authority:

	a.  approve the applicant's post-trial request for discharge in lieu of court-martial, 

	b.  issue him a UOTHC discharge, and 

	c.  disapprove the court-martial findings and sentence and dismiss the charges.
7.  The SJA stated the applicant had been found guilty of two specifications of wrongful use of marijuana and one specification of attempted purchase and/or possession of hashish.  He was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, and to be discharged with a bad conduct discharge.  The applicant submitted a post-trial request for discharge under the provisions of Army Regulation 635-200, chapter 10, and requested that the separation authority disapprove the court-martial findings and sentence and grant him testimonial immunity.  In return, the applicant offered to testify truthfully and cooperate with the Government.  The separation authority granted the applicant's requests and ordered him to testify against members of a gang.  The applicant testified as expected and completed the portion of his agreement.

8.  On 20 November 1997, the separation authority approved the applicant's request; directed his discharge in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10; and directed issuance of a UOTHC discharge.  On 7 December 1997, he was discharged in accordance with the separation authority's decision.

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

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.
	b.  Paragraph 10-1c provides that, under certain circumstances, the general court-martial convening authority may approve a Soldier's request for discharge in lieu of trial by court-martial after the Soldier has been tried.

	c  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  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 evidence of record shows that the applicant was convicted of two specifications of wrongful use of marijuana and one specification of attempted purchase/possession of hashish by a court-martial and received a sentence that included a bad conduct discharge.  Although he had already been convicted and sentenced, as the result of an agreement with the general court-martial convening authority, he was allowed to request separation in lieu of trial by court-martial if he provided testimony, which he did.  The separation authority directed that he receive a UOTHC discharge.

2.  The applicant states his attorney advised him that the type of discharge he received would be in his best interest.  Considering that he had already been sentenced to a bad conduct discharge, it appears his attorney was correct.  In exchange for his testimony, he received a discharge somewhat less undesirable than what he would have received if his court-martial sentence had been carried out.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

3.  The evidence of record shows a pattern of serious misconduct that rendered his service unsatisfactory.  As such, the UOTHC discharge he received was appropriate then and remains so today.





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)                                         AR20140004989





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ABCMR Record of Proceedings (cont)                                         AR20140004989



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