IN THE CASE OF:    

		BOARD DATE:  11 June 2015	  

		DOCKET NUMBER:  AR20140018670 


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 all his benefits including restoration of his rank, payment for leave (with interest), and medical help. 

2.  The applicant states he asked for help at the time for an alcohol and drug problem but they did not help him.  He completed 3 years of active service.  He had 60 days of accrued leave and 50 days left in the Army.  They also lied about the discharge because it was supposed to be honorable. 

3.  The applicant does not provide any additional evidence. 

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's records show he enlisted in the Regular Army on 5 January 1981 and he held military occupational specialty 95B (Military Police).  He served in Germany from 14 May 1981 to 16 November 1982.  He was advanced to private first class (PFC)/E-3 on 8 December 1981 and specialist four (SP4)/E-4 on an unknown date. 

3.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar.

4.  On 22 November 1983, court-martial charges were preferred against the applicant for one specification of missing movement and one specification of disobeying a lawful order to draw his weapon (for movement). 

5.  On 11 January 1984, 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 the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested 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.

6.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting 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 
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service
* he did not elect to submit a statement in his own behalf

7.  On 12 January 1984, his immediate, intermediate, and senior commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.  His senior commander stated that he (the applicant), through his conduct, has violated the trust and confidence placed in him.  He added that the applicant lacked integrity, judgment, and character essential to perform in positions of trust and responsibility. 

8.  On 19 January 1984, 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, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

9.  On 27 January 1984, Headquarters, 573rd Personnel Service Company, Fort Bragg, NC, published Orders 19-1 reducing him from SP4/E-4 to PVT/E-1 effective 19 January 1984.

10.  He was discharged on 27 January 1984.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he was discharged for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form shows he completed 3 years and 23 days of net active service during this period.

11.  There is no indication in his records he petitioned the Army Discharge Review Board for a review of his discharge action within that board's 15-year statute of limitations. 

12.  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.  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.

	b.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.  Additionally, Soldier's receiving an "other than honorable discharge" will also lose the right to cash in their leave days.
	c.  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.

	d.  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 an offense 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.  Nothing in the applicant's records supports his contention that the reason for preferring court-martial charges against him was related to drugs and alcohol.  He missed movement with his unit and refused to draw his weapon for movement.  That is why court-martial charges were preferred against him.  The evidence clearly shows his choices were a court-martial (empowered to adjudge a bad conduct discharge) or a voluntary discharge under other than honorable conditions.  He elected the voluntary discharge and acknowledged he understood his character of service would be under other than honorable conditions.  There is no indication or evidence he was promised or led to believe he would receive an honorable discharge.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge. 

4.  When the separation authority approved the applicant's voluntary request for discharge in lieu of trial by court-martial he ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  A Soldier receiving an under other than honorable discharge will automatically be reduced to E-1 and also loses the right to cash in his/her leave days.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

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)                                         AR20140018670



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ABCMR Record of Proceedings (cont)                                         AR20140018670



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