IN THE CASE OF:  	  

		BOARD DATE:  30 December 2014	  

		DOCKET NUMBER:  AR20140006873 


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 does not make a statement; however, his spouse makes a statement on his behalf.  She states: 

* her husband, the applicant, will never have benefits from the Department of Veterans Affairs (VA) even though he was an amazing Soldier
* he had two honorable discharges prior to this other than honorable conditions discharge; she knows because she was a Soldier with him
* she remembers the call she received from Korea when a little boy jumped in front of his vehicle and died from the accident
* even though it was an accident, his chain of command wanted to court-martial him; this did not make sense
* her husband was helping a Soldier outprocess that day and that is why he was where the accident happened
* the accident affected her husband and he became mentally ill; not only was he in an accident that took a child's life, he also lost his career
* this accident traumatized her husband and drove him to mental breakdown 
* she feels the chain of command did not handle the situation properly or fairly 
* her husband is an amazing father and grandfather; he should receive VA benefits 

3.  The applicant provides: 

* Marriage certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from the Social Security Administration 

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 enlisted in the Regular Army on 25 October 1977 and he held military occupational specialty 31K (Combat Signaler).  

3.  He served through two reenlistments (7 October 1980 and 10 January 1985) in a variety of stateside or overseas assignments, including Alaska and Korea, and he attained the rank/grade of sergeant (SGT)/E-5. 

4.  He was awarded or authorized the Army Achievement Medal, Good Conduct Medal, NCO Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.  

5.  On 11 December 1986, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order, violating pass policy, and being drunk and disorderly. His punishment consisted of a suspended forfeiture of pay.  

6.  On 28 May 1987, the suspension of the punishment to forfeiture of pay imposed on 11 December 1986 was vacated and ordered executed after the applicant did on 29 April 1987: 

* leave his appointed place of duty without authority
* wrongfully appropriate a 1 1/4-ton truck, military property
7.  On 8 May 1987, court-martial charges were preferred against the applicant for/occurring on or about 29 April 1987:

* one specification of leaving his appointed place of duty (Spring Clean-up) without authority
* one specification of dereliction in the performance of his duties in that he willfully failed to ensure the safety inspection of a military truck and willfully failing to follow proper dispatch procedures
* one specification of unlawfully killing a Korean national by striking him with the military truck, by culpable negligence
* one specification of wrongfully appropriating a 1 1/4-ton truck, military property

8.  His battery, battalion, and brigade commanders recommended trial by a general court-martial empowered to impose a bad conduct discharge or a dishonorable discharge.   A Staff Judge Advocate also reviewed the charges and recommended trial by a general court-martial. 

9.  On 28 May 1987, 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 or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he understood if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; 

	d.  he understood that under no circumstances did he desire further rehabilitation or to perform further military service; and 

	e.  he elected not to submit a statement on his own behalf.  

10.  His chain of command, including the immediate (battery), intermediate (battalion), and senior commanders recommended approval of the discharge action.   

11.  Following a legal review and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 22 June 1987, the applicant was discharged accordingly.

12.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 9 years, 8 months, and 1 day of creditable active service.

13.  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. 

14.  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.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

15.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice and/or direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge (5 months after he had already received nonjudicial punishment for violating the pass policy and being drunk and disorderly).  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He 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.  

2.  The available evidence clearly shows the applicant violated the UCMJ and he was given a choice.  He consulted with counsel and he was advised of his rights. He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  He could have elected trial by a court-martial if he believed he was innocent of the charges.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading his discharge to either 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)                                         AR20140006873





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ABCMR Record of Proceedings (cont)                                         AR20140006873



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