IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017339 


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:

   a.  While he was stationed with S Troop, 4th Squadron, 2nd Armored Cavalry Regiment, his spouse, who was a Soldier stationed in Korea, told him that she was being sexually harassed by her acting platoon sergeant and other Soldiers within her unit.  He informed his commander and requested leave so he could be with his spouse and speak with the Inspector General.  His request was continuously denied and he submitted personnel actions to enroll in the Army Married Couples Program and to request joint domicile with his spouse.

   b.  After his paperwork was approved and returned to him, he asked his squad leader for permission to go to the finance office and the 8th Personnel Services Battalion (PSB) to turn in his paperwork.  He was granted permission to do so and he proceeded to the finance office first.  He waited approximately an hour and a half until he was helped.  Another Soldier in his unit provided him with a ride since he did not have his own vehicle.  He returned to his unit before going to the 8th PSB because he had been gone for so long.  When he returned to his unit, he received a written a counseling statement for disobeying a direct order to submit his paperwork.  Although he cannot prove this, he can only state on his honor that no such order was given.  
   
   c.  He had respectfully requested permission from SGT R______ to run these errands and he was granted permission.  Regardless, SGT R______ recommended him for nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ).  The paperwork that he had hoped to turn in to the 8th PSB was taken from him and he did not get it back until he was discharged.  As a result, he received an Article 15 and his request for reassignment was denied.  He was reduced in grade from E-3 to E-2 and had to report for 14 days of extra duty and 14 days of restriction.
   
   d.  When he asked why his paperwork had been taken from him, he was told that his unit felt that he was a flight risk and that he would attempt to leave for Korea and use the paperwork to report for duty there while on leave.  He did not even know that this was possible.  He continued to ask his commander to approve his request for leave and was denied.  At this point, he made the decision that his family should come first and he went absent without leave (AWOL).  This decision proved to his chain of command that he was unreliable and insubordinate.  When he returned, he was assigned to the squadron headquarters under constant supervision until a pre-trial confinement hearing. 
   
   e.  This action was taken prior to a possible court-martial, where his future service and ultimately his discharge from the U.S. Army would be decided.  He also received another Article 15 during this time for going AWOL.  At the hearing, his commander stated that he believed that his paperwork was turned in to the 8th PSB, that he did not feel that he was a flight risk, and that he was not likely to commit future serious offenses.  This was stated in the military magistrate's conclusions at the pre-trial confinement hearing.  This document was submitted with a prior DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in August of 2004.  Unfortunately, he no longer has a copy of the document.  
   
   f.  During the proceedings, he felt as if he were being singled out and that the circumstances surrounding his discharge were completely unfair.  He admittedly became defiant because his commander, platoon sergeant, and squad leader refused to help him and then decided that the only way to solve the problem was by forcefully discharging him from service although he did not desire this course of action.  Immediately prior to the hearing, he was threatened by his commander and SSG V_____ and told that if he did not agree to take a plea bargain, which consisted of a chapter 10 in lieu of a court-martial, he would be charged under a full court-martial.  As a result, when the magistrate asked if he wished to remain in the military, he quickly replied no; he felt he had no other choice and that the decision was forced upon him.  
   
   g.  If his commander believed that his paperwork was turned in to the 8th PSB, why was he given an Article 15 for disobeying an order?  He realizes there is no excuse for his actions, and he admits to going AWOL.  However, he had already been punished for this and received an Article 15.  Forcing him to take a discharge left him humiliated and unable to continue to serve his country as a Soldier.  In addition, it brought humiliation to his father, who was an active duty Soldier at the time.  Even after the discharge, he learned that his security clearance was never revoked, which leaves him to believe that he wasn't really considered a risk at all.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two DA Forms 4187 (Personnel Action)
* DA Form 4187-1-R (Personnel Action Form Addendum)
* two Certificates of Achievement
* U.S. Army Aviation Logistics School Diploma
* L-3 Communications Employee Pay Statement
* Texas State Technical College Diploma
* unofficial transcript form McLennan Community College
* two character reference letters
* Joint Personnel Adjudication System Person Summary 

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 6 November 2001.  He successfully completed training and he was awarded military occupational specialty 68S (Armament Electrical Avionics Systems Repairer).

3.  His record reveals a history of disciplinary counseling by members of his chain of command for various infractions including missing movement and multiple instances of failing to report, AWOL, and disobeying lawful orders.
 
4.  On 4 February 2003, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL for the period 23 December 2002 to 3 January 2003.

5.  On 4 March 2003, court-martial charges were preferred against the applicant for one specification of being AWOL for the period 15 February to 27 February 2003, and one specification of disobeying a lawful order to bring his compassionate reassignment paperwork to the PSB.

6.  On 5 March 2003, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions.  He was advised of 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, the applicant voluntarily and without having been subjected to any coercion, requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200.

7.  In his request for discharge, he acknowledged he understood that 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 discharge under other than honorable conditions.  He further acknowledged he understood that 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 Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

8.  On 7 March 2003, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  On 27 March 2003, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with an under other than honorable conditions discharge.  He completed 1 year, 3 months, and 29 days of creditable active military service with lost time for the periods 23 December 2002 to                 2 January 2003 and 15 February to 26 February 2003.   

9.  On 4 May 2005, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

10.  The applicant submitted a copy of his Associate in Applied Science Degree, post-service work with L3 Communications, and two character reference letters which attest to his work ethic and professionalism. 

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

   a.  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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

   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 applicant's request that his discharge be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's contentions are noted; however, while an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate based on his repeated violation of the UCMJ.  The applicant received the appropriate characterization of his service.  

4.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant's service records show a history of negative counseling and two instances of being AWOL.  He subsequently requested an administrative discharge in lieu of trial by court-martial.  Therefore, based on his record of indiscipline, the applicant's service does not merit an upgrade to his 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)                                         AR20140017339



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ABCMR Record of Proceedings (cont)                                         AR20140017339



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