IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140007653 


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 discharge.

2.  The applicant states he has changed for the positive as an individual and has become an asset to society.  

3.  The applicant provides five supporting statements.

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 11 October 1990, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 62B (Construction Equipment Repairer) and assigned to duty at Fort Irwin, CA.  

3.  On a date not shown in the available records, he was charged with assault and communicating a threat.  

4.  On 8 February 1993, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights available to him.  

5.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

	a.  He acknowledged that:

* he could request discharge for the good of the service because charges of assault and communicating a threat had been preferred against him under the UCMJ 
* he understood the elements of the offenses charged and had reviewed the evidence in his case which satisfied those elements
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood the facts that had to be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty and the possible defenses available at the time
* he understood he could be issued a UOTHC discharge 
* 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 a UOTHC discharge

	b.  He indicated he would not submit statements in his own behalf. 

6.  On 10 February 1993, the separation authority approved his request and directed he be discharged UOTHC.  On 19 February 1993, he was discharged in accordance with the separation authority's decision.  He completed 2 years, 4 months, and 9 days of net active service this period.  

7.  He provides five supporting statements commending him as a father and community member.
8.  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 UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge (HD) 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 (GD) 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows the applicant was charged with offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  

2.  Although his request did not include the admission of guilt required by regulation, this was a harmless error.  The available evidence shows he fully understood the implications of his decision.  His rights were fully protected throughout the discharge process.  

3.  His post-service conduct appears to be commendable; however, post-service conduct is not normally a reason for upgrading a properly-issued discharge.  Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge  

4.  Considering the serious charges against him, the separation authority was justified in directing that he receive a UOTHC discharge.  In the absence of evidence showing error or injustice in the separation authority's decision, there is an insufficient basis upon which to upgrade his discharge to an HD or a GD.

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)                                         AR20140007653





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ABCMR Record of Proceedings (cont)                                         AR20140007653



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