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		IN THE CASE OF:	   

		BOARD DATE:	 24 March 2015 

		DOCKET NUMBER:  AR20140013142 


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 discharge under other than honorable conditions be upgraded to at least a general discharge.

2.  The applicant states, in effect, that his discharge was unjust because the Army did nothing to help him with his drug and alcohol dependency.  He was not aware of the consequences of a discharge under other than honorable conditions and in hindsight would have consulted with legal counsel.  He is presently incarcerated for possession of drugs with intent to distribute since 2002 and has been a model prisoner who has been certified as a personal trainer and who has been recognized for saving an inmate’s life.  He did not receive the help he needed from the Army but has made an effort to better his character and prepare for his release.

3.  The applicant provides a three-page statement explaining his application, a letter to the Texas Veterans Commission, a news article, documents related to a life-saving incident, his educational accomplishments, his work performance records, DD Form 214 (Certificate of Release or Discharge from Active Duty), the approval of his discharge, a copy of his DA Form 2627 (Record of Proceedings under Article 15, UCMJ), DA Form 2-1 (Personnel Qualification Record – Part II), and his enlistment contract.

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 November 1985 for a period of 4 years, training as a chemical operations specialist, and with a cash enlistment bonus.  He completed his one-station unit training at Fort McClellan, Alabama and was transferred to Fort Benning, Georgia to undergo airborne training.

3.  On 30 April 1986, nonjudicial punishment was imposed against him for being drunk and disorderly. 

4.  He completed his airborne training and was transferred to the Ranger Indoctrination Program and subsequently to a Ranger Battalion at Fort Benning.  He was advanced to the pay grade of E-4 on 13 September 1988.

5.  The applicant was arrested by civil authorities in Oklahoma on 28 December 1988 and remained confined by civil authorities until he was released on 3 January 1989 and was returned to military control.

6.  The completed facts and circumstances surrounding his administrative discharge are not present in the available records.  However, they do show that charges were preferred against the applicant for one specification of Article 108, five specifications of Article 134, and one specification of Article 121. 

7.  The available records also show that after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of lesser-included offense(s) which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.  
8.  The appropriate authority (a major general) approved his request and directed that he be discharged under other than honorable conditions.

9.  Accordingly, on 14 March 1989, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 3 months, and 26 days of active service and had 6 days of lost time due to confinement by civil authorities.

10.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  A review of the Federal Bureau of Prisons website shows that the applicant has a release date of 25 June 2020.  

12.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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 voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service, to avoid a punitive discharge which may have resulted in a felony conviction on his record.  In doing so he admitted guilt to the charge against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the serious nature of the charges against him and the lack of mitigating circumstances.  His service simply did not rise to the level of 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.



ABCMR Record of Proceedings (cont)                                         AR20140013142





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ABCMR Record of Proceedings (cont)                                         AR20140013142



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