IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140012603


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 and restoration of his rank/grade to private first class (PFC)/E-3.

2.  The applicant states:

	a.  He entered the Army in 1984 very excited to serve his country, get a great education in the field of nuclear weapons, and get a great education afterwards with the Army College Fund.

	b.  He had fun during his off time and loved to play pool on post.  He would play frequently; it became routine for him and his game greatly improved.  He was stationed at Fort Lewis, Washington, where another young Soldier drove off post and killed a civilian while driving drunk.  After that tragedy, the Army disallowed its younger Soldiers from entering establishments that served alcohol. This greatly upset him, since the pool halls served alcohol and he wanted to play pool.

	c.  A few months later, he was approached by a fellow Soldier who offered to get him a fake identification card that would show he was over 21 years of age in exchange for letting this Soldier use his vehicle on several weekends thereafter.  This was a tremendous error in judgment for him to have agreed to this offer.  All he was trying to do was play pool, which was his favorite hobby, but he went about it the wrong way.

	d.  It's nearly 30 years later and he had a stellar military record, complete with accolades.  He wishes for his discharge to be upgraded so he can redeem a good record for the efforts he put in, and for the efforts he continues to put in on a daily basis. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 February 1986
* Orders 33-2, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, Washington on 19 February 1986
* DA Form 87 (Certificate of Training), Basic Training Class #36-84
* Certificate of Participation, 5th Brigade – Independence Day Challenge Run, dated 4 July 1984
* Missile and Munitions Center and School (MMCS) Form 676 (300 Club – Certificate of Achievement), undated
* his diploma from the Nuclear Weapons Maintenance Course, dated 16 November 1984
* a Certificate of Completion for the Instructor Training Course, issued by the U.S. Army Air Defense Artillery School, Fort Bliss, Texas
* a letter of appreciation from the Fort Lewis Installation Maintenance Officer, dated 12 July 1985
* news clippings purported to be from "The Chronicle," and from the "Fall River, Mass., Herald News," each dated 19 September 1984
* a letter of appreciation from the Chief, Nuclear Weapons Support Branch, dated 9 July 1985
* a letter of support from the Noncommissioned Officer in Charge (NCOIC), Fort Lewis Directorate of Personnel and Administration (DIRPA), undated
* a letter of support from the Chief, Admin NCO, dated 19 December 1985
* a letter of support from his immediate supervisor, dated 20 December 1985
* a letter of support from the Assistant Adjutant, Headquarters, 593rd Area Support Group, dated 26 December 1985 

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 5 June 1984.  He completed his initial entry training and was awarded military occupational specialty 55G (Nuclear Weapons Maintenance Specialist).  The highest rank/grade he attained while serving on active duty was PFC/E-3, which he attained on 1 September 1985.

3.  On 22 October 1985, court-martial charges were preferred against him for:

	a.  conspiring with a fellow Soldier to wrongfully make and acquire a false identification card; and

	b.  wrongfully receiving and possessing a false U.S. Armed Forces Identification Card, known by the applicant to be stolen property, wrongfully possessing a U.S. Armed Forces Identification Card with the intent to deceive, and wrongfully and falsely making a U.S. Armed Forces Identification Card.

4.  On 31 October 1985, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

	b.  In his request for discharge, he acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  

	c.  He further acknowledged he understood that if his 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

5.  On 31 October 1985, he signed a pre-trial agreement prepared by his defense counsel, in which he offered to fully cooperate with counsel and to truthfully testify at any administrative, nonjudicial or judicial proceedings regarding false or unauthorized military identification card offenses, provided the general court-martial convening authority agreed in advance to approve his request for discharge for the good of the service, in lieu of trial by court-martial.  

6.  On 19 November 1985, the Staff Judge Advocate presented the same pre-trial agreement to the Commanding General, Headquarters, I Corps and Fort Lewis, for his approval.

7.  On 7 January 1986, he was barred from reenlistment.  

8.  On 23 January 1986, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana during the period 26 November through 10 December 1985.

9.  On 14 February 1986, the separation authority approved the applicant's request for discharge and directed his discharge under other than honorable conditions.  He further directed his reduction to the lowest enlisted grade.

10.  On 21 February 1986, he was discharged accordingly in the rank/grade of private/E-1.  His DD Form 214 confirms he was discharged under other than honorable conditions.  

11.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  He provides numerous certificates and letters of support that document his achievements and positive work ethic during his period of service.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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 discharge under other than honorable conditions is normally considered appropriate.

	a.  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.
	b.  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 request for an upgrade of his under other than honorable conditions discharge and restoration of his rank/grade to PFC/E-3 was carefully considered; however, there is insufficient evidence to support his request.

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 chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, which included violations of the UCMJ that resulted in preferred court-martial charges and nonjudicial punishment, and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, it 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 was reduced to the lowest enlisted grade at the direction of the general court-martial convening authority, which was consistent with the procedures applied in discharge actions under the provisions of Army Regulation 635-200, chapter 10, both then and now.  Therefore, he is not entitled to restoration of his grade to PFC/E-3.

6.  In view of the foregoing, there is an insufficient basis to grant the requested relief.



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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20140012603



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