IN THE CASE OF:  	  

		BOARD DATE:  9 April 2015	  

		DOCKET NUMBER:  AR20140014539 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he feels he was wronged by his commanders at Headquarters and Headquarters Battery, 42nd Field Artillery.  At the time he was young and naïve so he believed what he was told, but now he knows that his discharge was a ploy to get him out of the Army because he had a reputation for being gay which resulted in him being in several fights with other Soldiers in his unit.  He was told to take the discharge and he would be able to return to service after 3 years.  If he did not take it he would be sent to prison.  Fear with the hope of returning at a later date was used to get him to accept the offer.  He is attending graduate school at the University of Texas in Arlington, TX where he is pursuing a Masters of Public Administration degree with an emphasis on human resources and diversity.  He would like to have the injustice done to him (discrimination based on perceived homosexuality) corrected by upgrading his discharge to honorable.  He also plans to apply for government jobs and he would like to be able to use his veteran's preference points.

3.  The applicant provides his 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 was born in February 1965 and enlisted in the Regular Army at 18 years and 7 months of age, on 2 September 1983.  He completed the training requirements and he was awarded military occupational specialty 17C (Field Artillery Target Acquisition Specialist). 

3.  He served in Germany from February 1984 to August 1985.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter Marksmanship Qualification Badge with Grenade Bar, Army Service Ribbon, and Overseas Service Ribbon. 

4.  On 10 April 1985, his commander notified him that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following misconduct: 

* on or about 22 March 1985, committing an indecent assault upon another Soldier by pulling down his underwear and touching his pe—s with intent to gratify his sexual desire
* on or about 22 March 1985, soliciting another Soldier to participate in an act of sodomy by asking him if he could give him a bl—jo-

5.  On 15 April 1985, after consulting with counsel, he declined the Article 15 and demanded a trial by court-martial.  

6.  On 29 May 1985, court-martial charges were preferred against the applicant for one specification of committing an indecent assault and one specification of wrongfully soliciting another Soldier to participate in an act of sodomy.

7.  On 30 July 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested a 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.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he understood if the 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 he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and

	d.  that under no circumstances did he desire further rehabilitation or to perform further military service.

8.  On 1 and 2 August 1985, the applicant's immediate and senior commanders recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

9.  On 7 August 1985, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  

10.  On 29 August 1985, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 11 months, and 28 days of active service.  

11.  On 7 July 1985, the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable.  As such, the ADRB denied his request for an upgrade of his discharge. 

12.  Army Regulation 635-200 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.  It 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 record shows he was charged with the commission of offenses 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.

2.  The applicant was not discharged because of his sexual orientation.  He was discharged because he requested a voluntary discharge.  The evidence of record clearly shows court-martial charges were preferred against him and that he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions. 

3.  The applicant was 18 years and 7 months of age when he enlisted in the Regular Army and nearly 20 years of age when he committed his misconduct.  However, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service or that his acts of misconduct were related to his age. 

4.  The applicant was discharged because he voluntarily elected the discharge in lieu of facing a court-martial.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge 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.

ABCMR Record of Proceedings (cont)                                         AR20140014539



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140014539



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1