IN THE CASE OF:
BOARD DATE: 6 January 2015
DOCKET NUMBER: AR20140008647
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, in effect, hazing was responsible for his actions which led to an under other than honorable conditions discharge.
3. The applicant provides no additional evidence.
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 14 April 1997.
3. His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 December 1997 for absenting himself from his unit from 21 to 31 October 1997.
4. On 17 April 1998, court-martial charges were preferred against the applicant for violation of the UCMJ by, without authority, absenting himself from his unit for the period 27 January through 13 April 1998.
5. On 17 April 1998, he consulted with legal counsel and was advised 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 requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations Enlisted Personnel).
6. In his request for discharge, the applicant indicated he was making this request of his own free will and he had not been coerced by any person whatsoever. He also acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions. He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. Statements in his own behalf were not submitted with his request.
7. The applicant's immediate and intermediate commanders recommended approval of the applicant's request with the issuance of an under other than honorable conditions discharge.
8. 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 accordance with chapter 10 of Army Regulation 635-200, directed that the applicant be reduced to the lowest enlisted grade, and the issuance of an under other than honorable conditions discharge. The applicant was accordingly discharged on 25 September 1998.
9. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions. This form further shows he completed 1 year, 2 months, and 16 days of net active service this period with lost time for the periods 21 to 30 October 1997 and 27 January to 12 April 1998.
10. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
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 applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered; however, it was determined to lack merit. He voluntarily chose to commit the offense which ultimately led him to face court-martial charges which could have resulted in a dishonorable or bad conduct discharge. Instead, he chose to request a voluntary discharge.
2. His records show 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. 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. Further, his discharge accurately reflects his overall record of service.
3. Although the applicant alleges that he was a victim of hazing during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged hazing. He did not make this contention at the time he requested discharge. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.
4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory; therefore, he is not entitled 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.
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