IN THE CASE OF:	   

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140007168 


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 to a general or uncharacterized discharge and removal of Article 15s from his records.

2.  The applicant states, in effect, that:

* the Army Discharge Review Board (ADRB) unlawfully discharged their duties by relying on Article 15s 
* his Fifth and Sixth Amendment rights were violated
* he was advised he would be provided an opportunity to upgrade his  discharge after a 2-year period
* mental counseling was not done before he was discharged

3.  The applicant provides:

* A copy of his ADRB Case Report and Directive
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum, Subject:  Appointment as a Special Court-Martial Convening Authority/Delegation of Approval Authority for Chapter 10 Discharge Request (Paragraph 1-21l, AR [Army Regulation] 635-200)
* Memorandum, Subject:  Admission of AWOL [absent without leave] for Administrative Purposes
* Memorandum, Subject:  Transmittal of Court-Martial Charges
* Three DA Forms 4187 (Personnel Action) 

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 record shows he enlisted in the Regular Army on 29 July 1998.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 19K (M1 Armor Crewman).

3.  The available evidence shows he was AWOL from 17 December 1998 to 
3 January 1999 and he received an Article 15 for his first period of AWOL; however, that document is not contained in the available records.  His Official Military Personnel File (OMPF) does contain a DA Form 4187, dated 8 March 1999, signed by an authorized official, verifying the applicant went AWOL during the punishment phase of a Field Grade Article 15.  His OMPF does not contain any DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)).

4.  The applicant was also AWOL from period 8 March through 27 August 1999.  On 1 September 1999, charges were preferred against him for this period of AWOL.

5.  On 1 September 1999, he consulted with counsel and 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 the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  Subsequent to receiving legal counsel, the applicant voluntarily 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.  He acknowledged that:
* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charge against him or a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be discharged under conditions other than honorable
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

7.  On 14 July 2000, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of an under other than honorable conditions discharge.

8.  On 27 September 2000, the applicant was discharged accordingly.  His
DD Form 214 shows he completed 1 year, 7 months, and 19 days of total creditable active military service, with 190 days of lost time due to being AWOL.
 
9.  On 14 March 2012, the ADRB denied the applicant's request for an upgrade of his discharge.  The ADRB based its decision on the applicant’s overall service, which included 190 days of AWOL.

10.  The applicant provides several documents concerning his discharge process.

11.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states nonjudicial punishment (NJP) is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.  

	a.  Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  

	b.  Paragraph 3-37b(1) states for Soldiers who are at the rank of specialist or corporal and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of the DA Form 2627 as "not applicable."

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 3-7b states 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.

13.  Soldiers in an entry-level status may receive an uncharacterized separation under certain circumstances.  Entry-level is defined as the first 180 days of continuous active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered and found to be without merit.

2.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.
3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service. 

4.  The applicant contends he was informed that he would be provided an opportunity to upgrade his discharge after a 2-year period.

5.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

6.  He was not eligible for an uncharacterized discharge.  According to the applicable regulation, an uncharacterized separation applied to Soldiers who were in an entry level status and had completed no more than 180 days of continuous active service.  The applicant had completed 1 year, 7 month, and 19 days of net active service.  Therefore, he was not eligible for an uncharacterized description of service.

7.  His request to have an Article 15 removed from his record is found to be without merit.

8.  Based on regulatory guidance, records of NJP for Soldiers who are serving in the rank of specialist or corporal and below will be filed locally in the unit NJP or unit personnel files.  These records were not filed in his OMPF.  Therefore, there is nothing to remove.

9.  The applicant’s contention that the ADRB improperly based its decision on an Article 15 is without merit.  In reviewing the applicant’s request for an upgrade of his discharge, nothing precluded the ADRB from considering references to an NJP contained in his record.  Further, the record shows the ADRB considered his entire record in making its decision.  

10.  Based on his record of indiscipline, which includes being AWOL for 190 days, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the relief requested.




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)                                         AR20140007168



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ABCMR Record of Proceedings (cont)                                         AR20140007168



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