IN THE CASE OF:	  

		BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140006253 


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.

2.  The applicant states, in effect, that he was unjustly represented and advised by his legal counselor to sign discharge papers as opposed to attempting to clear his name after being falsely accused.  He enlisted at age 17 to create an opportunity for himself and serve his country.  After making a bad decision, he consulted with counsel who immediately advised him to sign discharge papers to avoid a court-martial.  He is seeking his North Carolina Insurance license and needs his discharge upgraded for the sake of his family and career.

3.  The applicant provides: 

* Army Achievement Medal orders
* Six Character References
* Two Sworn Statements (applicant and accuser)
* Military and Civilian education/training documents
* DA Form 4856 (Developmental Counseling Form), dated 1 July 2002
* 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.  His records show he enlisted in the Regular Army on 7 June 2001 and he held military occupational specialty 75H (Personnel Service Specialist).  He was assigned to Company B, 82nd Soldier Support Battalion, 82nd Airborne Division, Fort Bragg, NC.

3.  On 30 April 2002, court-martial charges were preferred against him for rape and sodomy by force and without consent.

4.  On 10 June 2002, he requested discharge in lieu of trial by court-martial.  In his request he admitted guilt to sodomy but not rape.  He indicated that he was unaware that sodomy was punishable under the Uniform Code of Military Justice (UCMJ).  He was young and he used bad judgment.  He requested a general discharge based on his service record and to allow him an opportunity to overcome his mistake.

5.  On 12 June 2002, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily 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.

6.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a punitive discharge.  He further acknowledged he understood that if his 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 Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 20 June 2002, the separation authority approved his request for discharge in lieu of trial by court-martial with an under other than honorable characterization of service and directed he be reduced to private/E-1.

8.  On 12 July 2002, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year and 26 days of creditable active service.

9.  On 10 October 2003, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly and equitably discharged.

10.  The applicant provides:

	a.  six character references, including a General Officer letter of recommendation, wherein his chain of command recommended that he receive a general discharge noting his exemplary performance and work ethic.  In addition, they stated that the applicant was a young Soldier and he should be allowed to learn from the isolated incident.

	b.  a Developmental Counseling, dated 1 July 2002, which rated his over-all performance as outstanding and noted his motivation, uniform, physical fitness as exemplary.

	c.  numerous military and civilian achievements to include the award of the Army Achievement Medal, completion of the Airborne Course, and his Bachelor of Arts Degree.

11.  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.  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.

12.  Army Regulation 635-200, 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.

13.  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 evidence of record shows he 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Further, there is no evidence and the applicant has failed to provide any evidence to show he received ineffective counsel.  His achievements are noted; however, his misconduct rendered his service unsatisfactory.  His record shows that he acknowledged guilt to the charge of sodomy.  Therefore, he is not entitled to an honorable or a general discharge.

3.  In view of the above, his request should be denied.

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)                                         AR20140006253





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ABCMR Record of Proceedings (cont)                                         AR20140006253



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