IN THE CASE OF:  	  

		BOARD DATE:  26 February 2015	  

		DOCKET NUMBER:  AR20140011471 


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 (UOTHC) to an honorable discharge (HD) or general discharge (GD).

2.  The applicant states:

* he served in the U.S. Army from April 1984 through October 1994 as a military policeman
* he accepted a chapter 10, UOTHC discharge, which was the worst decision of his life
* he was accused of assault with a deadly weapon but he did not commit the offense
* he did not have a weapon
* he was guilty of assault by slapping another Soldier
* his expiration of term of service (ETS) was in August of 1994
* he had an Article 32 hearing on 5 August 1994, but his court-martial was pushed back until February 1995
* after accepting the chapter 10 he was barred from military installations for 1 year
* he applied twice to have the bar lifted and it was approved on the second request
* he has worked on many military installations
* he possesses a concealed weapons permit and a Transportation Worker Identification Credential (TWIC) card
* he is a law abiding citizen and the only infractions he has had are two speeding tickets
* he is not a threat to anyone nor has he ever been

3.  The applicant provides:

* orders
* several certificates
* two DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) 
* a DA Form 1059 (Service School Academic Evaluation Report)
* an Army/American Council on Education Registry Transcript
* a DD Form 2586 (Verification of Military Experience and Training)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 13 April 1984.  After completing initial entry training, he was awarded military occupational specialty 95B (Military Police).  He continued his service through reenlistments.

3.  On 19 December 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a noncommissioned officer.

4.  A DD Form 458 (Charge Sheet), dated 29 July 1994, shows he was charged with:

* unlawfully striking an individual in the face and abdomen with his hands and commit an assault on him by jabbing at his throat and stomach with a means likely to produce death or grievous bodily harm 
* committing an assault on an individual by pointing at him with a dangerous weapon likely to produce death or grievous bodily harm
* communicating to an individual a threat to injure him 

5.  After consulting with counsel, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He stated:

* he understood he could request discharge because he was guilty of one or more serious offenses for which the UCMJ authorized imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation because he had no desire to perform further military service
* he had been advised that he could receive a UOTHC discharge
* he understood that, as a result of a UOTHC discharge – 

* he would be deprived of many Army benefits
* he could be ineligible for many or all benefits administered by the  Veterans Administration
* he could be deprived of his rights as a veteran under both Federal and State law

* he understood he could expect to encounter substantial prejudice in civilian life because of a less than honorable discharge

6.  On 3 October 1994, after discussing his request for discharge with his chain of command, military trial counsel recommended approval of his request for discharge.

7.  The trial counsel stated the lack of evidence on the aggravated assault charge and the tremendous difficulty in composing a court-martial panel in the middle of Combat Maneuver Training Center rotations were two strong factors for supporting the chapter 10 request.

8.  On 7 October 1994, the separation authority approved the applicant's request; directed his discharge in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10; and directed issuance of a UOTHC discharge.  On 26 October 1994, he was discharged in accordance with the separation authority's decision.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of that regulation 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 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 evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge.

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 which may have resulted in a felony conviction.

3.  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.

4.  He contends he did not have a weapon; however, he admits that he committed assault on another Soldier.

5.  Based on the seriousness of the charges against him, his service during his final enlistment 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)                                         AR20140011471



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ABCMR Record of Proceedings (cont)                                         AR20140011471



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