IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140008257 


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 states he was unlawfully incarcerated after his special court-martial but provides no further details.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty), a DA Form 2-2 (Insert Sheet to DA Form 2-1 - Record of Court-Martial Conviction), and an approval indorsement.

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 enlisted in the Regular Army on 17 May 1976 and he held military occupational specialty 46N (Pershing Electrical Mechanical Repairman).

3.  He served in Germany from 9 March 1977 to on or about 7 March 1978.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar.  The highest rank/grade he attained while serving on active duty was private/E-2.

4.  His records show he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:

* for two specifications of failing to go at the time prescribed  to his appointed place of duty , 7 December and 9 December 1976, respectively
* wrongfully possessing marijuana, on 10 February 1977

5.  On 26 September 1977, he was convicted by a special court-martial for wrongfully communicating a threat to a foreign national.  The court sentenced him to a reduction to private/E-1 and hard labor for 2 months without confinement.  The convening authority approved his sentence on 26 September 1977. 

6.  The applicant's discharge packet is missing the charge sheet; however, there are other documents from the discharge packet available.  Additionally, his record includes a bar to reenlistment action wherein his commander based the bar on both the previous misconduct noted above and pending general court-martial charges for 2 specifications of assault, larceny, resisting apprehension, and communicating a threat.  The commander noted the applicant was placed in pretrial confinement because of his previous behavior.

7.  On 24 February 1978, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a 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 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.  In his request for discharge, he indicated he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions
* understood if the 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 Veterans Administration
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

8.  On 1 March 1978, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 9 March 1978.

9.  His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 9 months, and 
23 days of active service.

10.  On 12 March 1980, the Army Discharge Review Board denied his request for a discharge upgrade.

11.  Army Regulation 635-200 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, an under other than honorable conditions discharge is normally considered appropriate.

	b.  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.

	c.  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.

12.  Army Regulation 27-10 (Military Justice), in effect at the time, provides policy and procedures for the use of pretrial confinement.  It states, while as a general rule an accused pending charges should continue the performance of normal duties, pretrial confinement can be used when permitted by military law.

	a.  In any case of pretrial confinement, the staff judge advocate concerned will be notified, and a legally qualified defense counsel will be appointed and consult with the accused within 72 hours of when he enters pretrial confinement.

	b.  An accused will not be accepted into pretrial confinement unless accompanied by a properly executed confinement order and magisterial review will be accomplished.

	c.  A military magistrate is a judge advocate empowered to direct the release of persons from pretrial confinement upon his determination that continued pretrial confinement does not meet legal requirements.  The military magistrate will review each case and consider all relevant facts and circumstances in arriving at a determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.

3.  While he does not give much detail about what he describes as an unlawful incarceration, he was placed in pretrial confinement while charges for a general court-martial were pending, and this may be what he is referencing.  Absent evidence to the contrary, regularity and administrative correctness must be presumed on the question of whether his pretrial confinement was proper.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20140008257



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ABCMR Record of Proceedings (cont)                                         AR20140008257



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