IN THE CASE OF:  

		BOARD DATE:  12 May 2015    

		DOCKET NUMBER:  AR20140016021


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 to an honorable discharge.

2.  The applicant states, in effect, he has served honorably in the New York Army National Guard (NYARNG) since his 1996 discharge.  In the wake of 
11 September 2001, he guarded airports, bridges, and tunnels, and served with the NYARNG in Iraq and Afghanistan.  He supports his community as a volunteer firefighter in the Mohegan Volunteer Fire Department and as an ambulance driver.  He continues to serve the City of New York in his full time career with the New York City Department of Sanitation.  

3.  The applicant provides copies of the following documents:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 27 December 1996, 16 April 2005, and 
11 March 2009
* Permanent Orders (PO) 154-136, dated 3 June 2006, for award of the Combat Action Badge
* certificates for the North Atlantic Treaty Organization (NATO) Medal 
* certificates for the "Order of the Combat Spur" from the 2nd Squadron, 101st Cavalry Regiment, NYARNG
* three certificates from the NYARNG
* a certificate from the State of New York for the Firefighter 1 Training Course
* a certificate as an active member of the Lake Mohegan Fire Department
* a certificate for the Emergency Vehicle Driver Training Program 
* a certificate of recognition as a Sanitation Worker from the City of New York during Winter Storm Nemo 

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 25 August 1994.  After completing basic combat and advanced individual training, he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 18 October 1996, court-martial charges were preferred against him for two specifications of willfully disobeying the lawful orders of his commissioned and noncommissioned officers to have no contact with a fellow Soldier's wife, on or about 16 July and 24 August 1996, and one specification of wrongfully having sexual intercourse with a fellow Soldier's wife, on or about 24 August 1996.    

4.  On 13 November 1996, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from a commissioned officer not to leave Fort Carson, CO and to have no contact with a fellow Solder's wife, on or about 
10 November 1996.    

5.  On or about 15 November 1996, he consulted with legal counsel and he 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 the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by courts-martial.

6.  In his request for discharge, he acknowledged:

	a.  He understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and he would be furnished an Under Other Than Honorable Conditions Discharge Certificate.  

	b.  He had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  He indicated he understood he could elect or decline to submit statements on his own behalf and elected to provide a statement to the separation authority.

7.  In his statement to the separation authority, he understood the seriousness of the charges and wished to put the matter behind him and not have his fellow Soldier and his wife go through court-martial proceedings.   

8.  His immediate, intermediate and senior commanders recommended disapproval of his request for discharge in lieu of trail by courts-martial.  

9.  On 10 December 1996, the separation authority approved the applicant's request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate. 

10.  On 27 December 1996, he was discharged accordingly.  His DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and his service was characterized as under other than honorable conditions.  He completed 2 years, 4 months, and
3 days of net active service.    

11.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 15 July 2010.   

12.  The applicant subsequently enlisted in the NYARNG.  He provides two
DD Forms 214 for the periods ending 16 April 2005 and 11 March 2009, for completion of required active service in which both were for honorable periods of service. 
13.  He provides PO 154-136 for award of the Combat Action Badge during service in Iraq and a NATO certificate awarding him the NATO Medal for service in Afghanistan.  He also provides certificates for his service with the NYARNG and certificates for his service as a volunteer firefighter and his career with the New York City Department of Sanitation.  
 
14.  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.  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 an under honorable conditions (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 to an honorable discharge was carefully considered.

2.  His record of indiscipline includes nonjudicial punishment and court-martial charges for violations of the UCMJ involving disobeying lawful orders and wrongfully having sexual intercourse with a married woman not his wife.

3.  The evidence of record shows the applicant voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, to avoid a court-martial that could have resulted in a punitive discharge.  The evidence further 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.
4.  The Board recognizes and applauds his subsequent service to our Army and Nation as well as his accolades and volunteerism in the State of New York; however, based on his record of indiscipline during the period of service in question, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140016021



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