IN THE CASE OF:	   

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018817 


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.

2.  The applicant states the reason for his separation is unjust.  He served our country in combat and feels his separation is unjust. 

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 29 June 1982.  He completed the training requirements and he was awarded military occupational specialty 11B (Infantryman).

3.  He served in Grenada from 27 October 1983 to 11 November 1983 and in Germany from 11 October 1984 to on or about 27 August 1986.  He attained the rank/grade of sergeant/E-5 in September 1985.

4.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar, Armed Forces Expeditionary Medal, Expert Infantryman Badge, Parachutist Badge, and Army Service Ribbon. 

5.  On 13 May 1986, court-martial charges were preferred against the applicant for:

* one specification of unlawfully touching Private SMP
* one specification of committing an indecent assault against Private PLM
* one specification of communicating certain indecent language against Private SMP
* one specification of communicating certain indecent language against Private PLM
* one specification of unlawfully entering the barracks room of Private PLM
* one specification of unlawfully entering the barracks room of Private SMP

6.  His chain of command (immediate, intermediate, and senior commanders) recommended trial by a special court-martial empowered to adjudge a bad conduct discharge. 

7.  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 Uniform Code of Military Justice (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.

	e.  he elected to submit a statement on his own behalf. 

8.  In his statement, the applicant:

* provided the separation authority with an overview of his military service, training, and awards/badges; he also indicated that he previously served in Grenada and in Germany 
* indicated that an under other than honorable conditions discharge was not justified because the charges were brought against him in a manner in which he found it difficult to defend himself

9.  On 8, 9, and 10 July 1986, the applicant's immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

10.  On 11 July 1986, 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.  On 29 August 1986, the applicant was discharged accordingly. 

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service.  His DD Form 214 also shows he completed 4 years, 2 months, and 1 day of active service.

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

13.  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.  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)                                         AR20140018817





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ABCMR Record of Proceedings (cont)                                         AR20140018817



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