IN THE CASE OF:  	  

		BOARD DATE:  5 February 2015  	  

		DOCKET NUMBER:  AR20140011409 


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 that his under other than honorable conditions discharge be upgraded to either under honorable conditions or to honorable.

2.  The applicant states he was discharged for associating with individuals in his company who were believed to be involved in a criminal matter.  He decided against going to trial when he was offered the opportunity to leave the military.  He contends he was young, had a second child on the way, and he had a job available back home.  At the time, he was not fully capable of weighing his decision.  He adds that he served in combat.

3.  The applicant provides no additional evidence in support of his request.

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 was born on 2 November 1966.  He enlisted in the Regular Army on 8 September 1989, completed his initial entry training, and was awarded military occupational specialty 11B (Infantryman).

3.  On 2 April 1992, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disrespecting a noncommissioned officer (NCO).

4.  On 3 August 1992, court-martial charges were preferred against him for:

* attempting to willfully and maliciously set on fire an inhabited dwelling, the residence of Staff Sergeant (SSG) G___, a U.S. Army Soldier
* conspiring to commit aggravated arson by throwing a bottle containing a flammable liquid and a lighted wick (Molotov cocktail) at the residence of SSG G___
* conspiring to commit aggravated assault upon SSG G___ by shooting at the residence of SSG G___ with a shotgun
* committing an assault upon SSG G___ by shooting at him with a shotgun
* willfully and wrongfully discharging a firearm 

5.  On 3 August 1992, he consulted with legal counsel and 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, due to charges preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge.

6.  He acknowledged he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He was advised of:

* the nature of his rights under the UCMJ
* the elements of the offense with which he was charged
* the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the maximum permissible punishment if found guilty

7.  He also acknowledged he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.

8.  On 14 January 1993, the separation authority approved his request for discharge and directed his service be characterized as under other than honorable conditions.  On 21 January 1993, he was discharged accordingly.

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgraded of his discharge.

10.  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, a discharge under other than honorable conditions 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 states 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 request for an upgraded of his discharge has been carefully considered.

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge he admitted he was guilty of the charges.
3.  His voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline included NJP for disrespecting an NCO and court-martial charges for very serious offenses for which he admitted guilt.  Based on the seriousness of his offenses, and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that he was young at the time; however, age is not a mitigating factor for his misconduct.  He was almost 23 years old upon his enlistment in the Regular Army and he completed initial entry training.  This shows he was mature enough to serve.  Additionally, there is no evidence indicating he was any less mature than other Soldier of the same age who successfully completed military service.  

6.  The applicant failed to show that his separation process and/or the character of service he received were in error or unjust.  As a result, there is no basis for granting him an honorable or general characterization of his active duty service.

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)                                         AR20140011409



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011409



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1